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

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Mr. Speaker, as the member of Parliament for the upper Ottawa Valley riding of Renfrew—Nipissing—Pembroke, home to Garrison Petawawa, training ground of the warriors, I appreciate the opportunity to speak to Bill C-77, the legislation that, if passed, would amend provisions of the National Defence Act governing the military justice system. As a member of the Standing Committee on National Defence, I look forward to examining Bill C-77 in greater detail, and I will vote with my party to send this legislation to committee for further study.

It has been noted by our party's defence critic that Bill C-77 incorporates many of the legislative proposals made by the Conservative government in the 41st Parliament. This fact alone loan merits my support of the bill at second reading. There are changes between the legislation introduced by the Conservative government in the last Parliament and what we have before us today, and those changes will need to be carefully scrutinized.

As the member of Parliament for the riding that is home to Garrison Petawawa, Canada's largest army base, military justice is still a volatile topic. In addition to being the home of 2 Canadian Mechanized Brigade Group, 2 CMBG, and the 4th Canadian Division Support Group, which is made up of 2 RCHA, 1 RCR and 3 RCR, RCDs and 2 Combat Engineer Regiment, as well as 427 Special Operations Aviation Squadron and 450 Tactical Helicopter Squadron, Garrison Petawawa is also home to CSOR, the Canadian Special Operations Regiment.

CSOR, which was stood up during the Conservative watch of the defence of our nation, is the first new regiment to be stood up in over 50 years. I am proud of the role I played in supporting that decision and the subsequent decision to locate 450 Air Tactical Helicopter Squadron to be close by, to train with the troops its Chinook helicopters serve as strategic lift for. It made absolute sense to locate CSOR at Garrison Petawawa.

Petawawa is the home of the storied Canadian Airborne Regiment before it was disbanded during the decade of darkness that occurred prior to the election of a Conservative government. I mention that dark time in Canadian military history, the disbanding of the Canadian Airborne Regiment, as there is a direct relationship between that sad event and the legislation we have before us today.

March 5, 1995 will be forever etched in the minds of many Canadian veterans and their supporters as a day of infamy. That is the date the Canadian Airborne Regiment was officially disbanded by David Collenette, the the minister of defence at the time in the Jean Chrétien government. Collenette acted against the advice of the Chief of the Defence Staff in ordering the regiment to be disbanded. The most unfortunate aspect of the few acts of a handful of Canadian soldiers is that the Canadian success story in Somalia has been overlooked by the media and remains largely unknown to the majority of Canadians.

In late 1992, the Canadian Airborne Regiment was sent to Somalia to assist the United Nations peacekeeping mission in that country. Initially, the UN troops operated according to the relatively restrictive rules of engagement that directed most such operations. As the violence in Somalia escalated, however, the United States requested and received permission to modify its role. The Canadian Airborne Regiment received a change in orders. Canadian soldiers were ordered to be peace makers instead of being peacekeepers, two very different roles. The untold story is how the paratroopers of the Canadian Airborne Regiment, tankers of the Royal Canadian Dragoons and combat engineers of 1 Combat Engineer Regiment, all based in Garrison Petawawa, very quickly subdued heavily armed gangs. Attacks on Canadian patrols early in the mission were suppressed with force and local warlords quickly realized that Canada's combat power was not just for show. Humanitarian agencies could then go about their business of distributing relief supplies, a task that was never the primary mission of Canada's troops.

Canada's soldiers then turned to rebuilding a local infrastructure of the police, hospitals, schools, etc. Poignant testimony of the effectiveness of the second reconstruction phase of the Canadian mission came from the father of the dead Somali at the centre of the controversy. He pleaded with Major-General Lewis Mackenzie, who was by then retired and on assignment as a journalist to Somalia, to intercede to keep the Canadian soldiers in his country. He told Mackenzie that, while he grieved for his son, the value of the peace makers to Somalia was enormous.

If Canadians are going to use this dark period in military history as a learning exercise, there are several things parliamentarians need to keep in mind when we study this legislation in detail.

A big difference between this legislation and the bill that was introduced by the previous Conservative government is special consideration for indigenous members that results in sentences that are less harsh versus other Canadian Armed Forces members. There is a legitimate concern that a two-tier system of military justice could undermine operational discipline, morale and anti-racism policies.

The following question needs be considered: If the legislative provisions in Bill C-77 had been in place during the Somalia affair, and had he been fit to stand trial, should Master Corporal Clayton Matchee, an aboriginal, been treated any differently, under the circumstances, than a non-aboriginal soldier? Would the Liberal government of the day have been so quick to disband the Canadian Airborne Regiment and slash military spending in that circumstance?

The symbol for justice is a blindfolded figure holding a set of scales in balance. Will serving soldiers see a set of scales in balance or weighted in favour of someone based on government policies that tip the scale based on the political flavour of the day? Members of the Canadian Armed Forces should not be discriminated against based on race, gender, creed or culture.

I recognize that the Chief of Defence Staff stood up to deal with sexual misconduct and other forms of discrimination in the armed forces. However, as parliamentarians, we need to tread very carefully each time changes are made that would affect our women and men in uniform.

Consider this. For members of the Canadian Armed Forces, when they put on the uniform, they are soldiers first. That is an important distinction. In an operational setting, they need to rely on their fellow soldiers. Would Bill C-77 contribute to or diminish camaraderie among soldiers? Would Bill C-77 hurt operational efficiency? We need to keep asking these questions with real-life experiences in mind. Psychological experiments in troop cohesion will end up getting soldiers killed, the same way political expediency led to the loss of soldiers' lives in Afghanistan with the cancellation of the EH-101 helicopter contract by the Chrétien Liberal government.

One of the other take-aways from the Somalia affair was the report on the military justice system completed by former chief justice Brian Dickson in 1977. While it recognized that there was a breakdown in the chain of command, it also recognized that the chain of command, the flow of responsibility, must be at the heart of the military justice system. In the same way, a cabinet minister is expected to take responsibility for bad decisions by resigning, or, where there is a lack of judgment in not resigning, is fired by the Prime Minister.

The Somalia affair resulted in the end of a number of political careers, including several Liberal defence ministers. What is truly unfortunate about the Somalia affair is that with the political decision by the Liberal government of the day to shut down the civilian inquiry, the true cause of the breakdown in the chain of command never came to light. I quote from a 2017 media story:

The man who led an inquiry into the 1992 beating death of a Somali teenager at the hands of Canadian troops says he is frustrated that his commission's work was cut short before it could explore what role a controversial anti-malarial drug might have played in the violence.

Gilles Létourneau, a retired judge of the Federal Court of Appeal, says it may be too difficult now to examine whether mefloquine was a major factor in the so-called Somalia Affair because most of the soldiers who were deployed to the African country have left the military. But Mr. Létourneau told The Globe and Mail in a telephone interview on Wednesday it would be worthwhile to take a hard public look at the dangers posed by the drug, which is still being offered to Canadian Force members.

“Surely, run a survey of existing use of mefloquine within the Armed Forces and see whether the problems that were raised 20 years ago are still there,” Mr. Létourneau said.

“We ran out of time,” he said of the inquiry, which gathered evidence for two years before being cut off by the Liberal government of Jean Chrétien before the 1997 election. “There were so many issues to be covered, and this was one we had to leave aside in the hope that eventually medical progress would either sort out or solve these problems. But it hasn't been followed up, from what I can gather.”

Health Canada agreed in August, three years after the U.S. Food and Drug Administration came to the same conclusion, with an assessment that said mefloquine can cause permanent brain damage.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I know the hon. member still has some things she would like to say, and hopefully she will be able to do that during questions and comments.

The hon. member for Saanich—Gulf Islands.

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

Madam Speaker, as it is my first opportunity to speak to this bill, I wanted to use the moment to say that I support it.

These changes that are being made to ensure that we close the gaps that exist in the rights of victims of crimes within our Canadian military justice system have been a long time coming. The only substantial difference, as my hon. colleague just mentioned, between this and the efforts that were being brought forward under the previous minister in the 41st Parliament, is the extension to considerations for those who are within the military justice system and who are indigenous. I think these are very appropriate, given the statistics we have seen of disproportionality in incarceration for indigenous peoples, both within the criminal justice system in general and within our military justice system.

I just wanted to use the opportunity for a comment. My only question for the hon. member is, would the Conservatives consider letting the debate collapse soon so that the bill could get to committee even sooner?

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Madam Speaker, I do not know what my colleague at the end of the House is talking about or why she would want to rush it. We have to examine this bill here so that we can hear what our other colleagues are concerned about. Even just looking at the bill itself, it says:

Every victim has the right, on request, to information about....the offender while they are in a service prison or detention barrack...

Are they not getting that information now?

In “Protection from intimidation and retaliation”, it says:

....in the military justice system to protect the victim from intimidation and retaliation.

Do these protections not already exist for the protection of the victim?

On detention in a barrack, it is my experience that it is not the perpetrator who is detained in a barrack or a prison. Right now, it is the victim who is separated from her unit.

On “Privacy” it says:

Every victim has the right to have their privacy considered by the appropriate authorities....

However, nothing is going to be guaranteed.

This is the type of thing that we want to raise now, because in committee, quite frankly, there is the tyranny of the majority, and things just get rammed through.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Madam Speaker, my hon. colleague did bring up an interesting aspect of this that I, quite frankly, did not think about, and that was the issue of mefloquine and how that could have potentially impacted the issue in Somalia.

The hon. member may know that at veterans affairs committee, as we studied mental health issues among veterans, the issue of mefloquine came up. In fact, just a couple of weeks ago, I believe it was on September 19, there was a rally of mefloquine survivors out here on Parliament Hill. Along with several of my colleagues and NDP colleagues, I went out there, but not one Liberal member went out there to meet the mefloquine survivors.

They are not asking for much. They are asking for the government to investigate this, for outreach, to find out the impact that mefloquine has had on the lives of those veterans who were administered this while serving in Somalia and other theatres of war.

I believe my hon. colleague was out there. I would like to hear her comments on the issue of mefloquine.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Madam Speaker, I will continue on with the quote from before I was interrupted:

Symptoms reported by some users include anxiety, paranoia, depression, hallucinations, psychotic behaviour and, in rare cases, thoughts of suicide.

Some Canadian veterans say the drug ruined their lives. They are asking the government to contact members of the Armed Forces or veterans who were required to take it in places like Somalia, Rwanda and Afghanistan to determine if they suffered long-term consequences. They want more research to develop better diagnosis and treatment of the effects. And they are calling for an inquiry to determine what role mefloquine might have played in Somalia.

“No doubt about it, it should have been explored” during the Somalia Inquiry, Mr. Létourneau said, “because many soldiers complained to us when we toured … about the mefloquine and the side-effects and the nightmares. They called them the meflomares. There were a high number of persons reporting to us that it affected their behaviour and it scared them.”

Jonathan Vance, the Chief of Defence Staff, said this week that the mefloquine issue has his full attention in light of the Health Canada warning. He has assigned Brigadier-General Hugh MacKay, the Surgeon-General of the Canadian Armed Forces, to examine the its current use.

That, indeed, did play a role in a case that has led to future military justice legislation.

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

Madam Speaker, it is an honour for me to rise today to speak to Bill C-77, an act to amend the National Defence Act and to make related and consequential amendments to other Acts.

While we know that Canada's military justice system operates separately from Canada's civilian justice system, it is nevertheless important that its system is also just and fair. Canadian Armed Forces members are held to a high standard of conduct. It is understood that Canada's separate military justice system exists to maintain discipline, efficiency and morale in the Canadian Armed Forces. The safety and well-being of all Canadians is dependent on the military's ability to deal with internal discipline effectively and efficiently. That is because our esteemed men and women serving in the military are often required to risk injury or death when they perform their duties. Nonetheless, when it comes to provisions to support victims, there is a gap in the National Defence Act. Victims' rights should be at the heart of every criminal justice system. The proposed legislation takes a step toward that goal. It extends victims' rights into the military justice system, which is certainly positive.

The legislation we are considering is in fact largely modelled after Bill C-71, which was introduced in the previous parliament by the former Conservative government. It builds on existing efforts to put victims of crime at the heart of Canada's criminal justice system. The Conservatives have a proud record of standing up for victims of crime and law-abiding citizens, and we remain committed to them. We have and will always work toward ensuring that victims of crime have an effective voice in the criminal justice system, and we will never accept having the rights of criminals ahead of those of victims of crime and law-abiding citizens. In fact, for far too many years in Canada the scales of justice tipped in favour of criminals. Our criminal justice system neglected those who had been affected by their crimes. It neglected the rights of victims of crime. I am proud of the hard work and the achievements of our former Conservative government. Our country is better off for it. It took significant steps to find a better balance in our criminal justice system, steps that gave victims of crime clear, enforceable rights and protections.

The principle that victims of crimes should be a priority in Canada's criminal justice system was reflected throughout the former Conservative government's policies, reforms, and even investments. Whether it was the creation of the Office of the Federal Ombudsman for Victims of Crime, the passing of the Safe Streets and Communities Act, or investments in child advocacy centres across the country, victims and law-abiding criminals were always the priority.

The landmark Canadian Victims Bill of Rights was the most notable forward step for victims taken by the former Conservative government. This historic legislation entrenched the rights of victims of crime into a single document at the federal level. The Canadian Victims Bill of Rights guarantees victims of crime the right to information, protection, participation and restitution. lt means that the rights of victims are considered at every stage of the criminal justice process, as they should be.

After entrenching the Canadian Victims Bill of Rights in Canada's criminal justice system, our former Conservative government tabled legislation to also give victims of service offences the same rights, that is, the right to information, protection, participation and restitution. Unfortunately, there was not enough time to study and pass this legislation before the dissolution of Parliament. However, I am pleased that the current Liberal government, through Bill C-77, has copied that legislation. lt is the right thing to do. As we work to protect and promote victims' rights, we are helping to ensure that both of Canada's criminal justice systems help those who truly deserve support.

Given that the legislation for the most part is a carbon copy of the legislation introduced by the former Conservative government, it is disappointing that it is being introduced so late in the Liberal government's mandate. I suppose this is perhaps a reflection of the Liberal government's record on victims' rights.

Unfortunately, it is way too easy to offer examples of the Liberal government's appalling record of putting the rights of dangerous criminals ahead of the rights of victims and their families. Just last week, the Liberals voted against our Conservative motion calling on their Minister of Veterans Affairs to revoke the Veterans Affairs-funded benefits of Chris Garnier, a convicted cop killer. Moreover, the Liberal government is still defending the transfer of Terri-Lynne McClintic to a healing lodge. McClintic was convicted of first-degree murder in the 2009 kidnapping and rape of eight-year-old Tori Stafford. Less than 10 years after the disgusting crimes she committed, she has no business being transferred to a healing lodge facility. That facility has no fences around it and often has children present. However, the Liberal public safety minister has defended this decision and downgraded her despicable crimes to “bad practices”. As a mother of two young children, I am livid by the Liberal government's refusal to exercise its moral, legal and political authority to reverse this decision, and my heart breaks for the family of Tori Stafford.

These are just two recent examples in the public eye of the Liberals' backward priorities. They have also tabled Bill C-75, which makes sweeping changes to Canada's Criminal Code. lt undoes a lot of the progress our former government made to put the rights of victims ahead of criminals.

While we are considering the legislation before us, I would point out that the Liberals are also pushing through legislation to reduce sentencing for serious crimes. These are serious crimes like human trafficking, participation in a terrorist group or the abduction of a child under the age of 14. The Liberal record of putting the rights of criminals ahead of victims is shameful. lt is not a record of restoring victim rights.

That said, I am pleased to see that a version of our Conservative legislation has been brought forward by this government. Victims' rights should never fall by the wayside in either of Canada's systems of justice. That is why passing this legislation is so important. Like the Canadian Victims Bill of Rights, this legislation entrenches four key rights for victims of service offences. First, it provides the right to information. This includes the right to information on the military justice system, as well as services and programs available to victims. lt also gives victims the right to information about the progress of the case. The legislation gives victims the right to protection by giving consideration to their privacy and security through the military justice process. lt gives them the right to participate in the proceedings and creates an opportunity for a victim impact statement to be made. lt also gives the right to restitution when financial losses can reasonably be determined.

The addition of these rights to the military justice system through the Code of Service Discipline's declaration of victims' rights places these rights at the heart of the military justice system. That is exactly where they belong. The legislation has my support. I will be voting in favour of sending it to committee so it can be studied in detail.

Conservatives will always stand in support of victims. We will always be in favour of giving victims a stronger voice in Canada's criminal justice systems. I hope the legislation is referred to committee and that all victims of crime and law-abiding Canadians are given a greater priority by the Liberal government.

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

Madam Speaker, I am glad to hear the member suggesting that we advance the legislation to committee. We have also had the Green Party and New Democrats advocate that. The government and many members of her own caucus would like to see that happen. I wonder if I could suggest that we try to pass it today as a way of responding positively to those following the debate.

[Bardish Chagger, Liberal, Waterloo, ON]

Why are they holding it up?

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I want to remind the government House leader that if she wishes to ask a question, she can stand to ask the question as long as she is in her space. In the meantime, I would ask that she afford the respect to the members who are going to be speaking.

The hon. member for Battlefords—Lloydminster.

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

Madam Speaker, a member was heckling me about getting my talking points. I do not have talking points on this. There are people in this party and on this side of the House who want to speak to this. It is unfortunate that the Liberal government is wanting to force this through. I am surprised we do not have a time allocation on it or something like that. That seems to be normal over there.

As my previous colleague has said, she will not be surprised if and when this goes to committee, it will be rammed through to please whatever the Liberal agenda is.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Madam Speaker, we are talking about this eventually getting to committee and we really hope it does eventfully happen. I recognize that so many Conservatives are interested in talking to this very important topic, but it begs this question. When they originally introduced very similar legislation, why did they introduce it five days before the House rose in 2015, only to know that Parliament would be dissolved shortly thereafter and that the legislation would never end up making it anywhere?

Would my colleague agree that it perhaps is slightly disingenuous, given the fact that the process to go through the House and the Senate would take much longer than five days, yet there was such great passion for this issue, as we can see coming from the Conservatives?

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

Madam Speaker, what is disingenuous is the government of the day, the Liberal government, putting victims rights first. We are not seeing that.

I listed two recent incidents in the past week where the Liberals had the opportunity to do the right thing, the moral thing and set an example, not just Canadians but young Canadians, that if something was wrong, they would take the high road and they would do what was appropriate and fix the mistake.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Madam Speaker, one of the interesting parts of the bill are the new rights in it, which in fact were previously in the Conservative bill. What the Liberals have done is simply cut and paste this bill. It was for victims who might not otherwise feel safe. Now that victims can request that their identities be protected, how important is that change in encouraging more victims to come forward while protecting their safety?

Does my hon. colleague agree with that aspect of the bill?

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

Madam Speaker, what is important is that any time there is a victim of any type of crime, no matter what the scale of the crime, we put the victim's decency, dignity and respect above all things. In my past line of work as a social worker, far too many times we saw victims who were re-victimized over and over again because of failures with the system.