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.

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

Mr. Chair, I move that Bill C-77, in clause 24 be amended by adding after line 19 on page 17 the following:

161.2 (1) Except in the circumstances prescribed in regulations made by the Governor in Council, a person charged with having committed a service infraction has the right to elect to be tried by court martial.

(2) If a person charged with having committed a service infraction elects to be tried by court martial, the charge must be referred, in accordance with regulations made by the Governor in Council, to the Director of Military Prosecutions.

As we know, in the summary hearings, service members have the potential to receive penal consequences. That could be a violation of charter rights if there's no right for a service member to choose to be tried by a court.

We heard from a number of witnesses, in particular, the briefing documents that we received from Lieutenant-Colonel Perron and from the Quebec bar association, that there is no way summary convictions would allow soldiers to opt for that court martial or to exercise that right.

Even though there's no offence under the National Defence Act that could be considered a criminal offence, there are some of these service infractions that should be considered by court martial. I think this is a concern in that there are no definitions in here, and maybe we're going to do this under regulation later, as to what actual service infractions will fall under summary hearings versus court martial.

The big concern is that if some of these are of a penal nature, such as, confinement to quarters, confinement to barracks, reduction of rank, reduction in pay by up to 25%, those are pretty serious charges and if you look down the road at some of these amendments we have, there are no recordings. There are at least half a dozen service infractions that could actually end up on a criminal record; even though civilly they're not criminal infractions, they're going to end up on the service member's criminal record when he or she leaves the military.

We need to start providing the options to make sure that we're in compliance with the charter. I believe that the amendments that were suggested by both Jean-Guy Perron and the Quebec bar association provide that opportunity to make things correct.

I just state that because of the penalties that are in place, the Supreme Court has already stated that a conditional sentence is a form of imprisonment. House arrest is a form of imprisonment. Confinement to barracks would be a form of imprisonment. We have to make sure this stands up before the Supreme Court if this ever gets to that court.

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

Yes, Mr. Chair. I move that Bill C-77, in clause 16, be amended by replacing, in the French version, line 1 on page 14 with the following:

b) de s'abstenir d'aller dans un lieu précisé dans l'ordonnance;

[The Chair, Liberal, Stephen Fuhr]

Good morning, and welcome to the national defence committee clause-by-clause study of Bill C-77.

I'd like to welcome Colonel Stephen Strickey, Lieutenant-Colonel Geneviève Lortie and Major Karl Lacharité.

Much of this will be observation. You may get involved at some point. Many of the members here have never done clause-by-clause, so we'll be patient with those who have not. Some veterans on the other side of the table have done it many times. We'll go as slowly as we need to, to get this right the first time.

Pursuant to order of reference of Monday, October 15, 2018, this is clause-by-clause consideration of Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts.

[Julie Dzerowicz]

Thank you so much.

Thanks again.

We're almost at the end of the testimony.

Leadership matters. It very much plays a role in how culture unfolds and even in how things like Bill C-77 are implemented and enforced. What more do you think needs to happen at the leadership level to ensure that Bill C-77, what we're trying to do and the support we're trying to provide to victims will go through?

What more do you think needs to happen at the leadership level?

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Chair, thank you very much.

Madam Gagnon, I'm going to ask you a question that goes slightly outside of the bill, and then I'll give the remainder of my time to my colleague MP Dzerowicz.

It goes back to what our colleague Monsieur Martel said about the well-being of victims. The bill talks about the right to information, the right to protection, the right to participation and the right to restitution.

In your experience as a former member of the Canadian Armed Forces, what support mechanisms were there prior to Bill C-77? What support mechanisms would there be in the future for a victim to come forward with respect to counselling and mental health services?

This being one incentive to take the step of coming forward, I think it's a very important—

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

Mr. Chair, I want to move a motion in light of testimony that we've received and the report that came from the Auditor General. I move:

That the Committee invite the Auditor General to appear before the consideration of Bill C-77 clause-by-clause and discuss his Fall 2018 report.

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

What provisions in Bill C-77 would address this?

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

That's good to hear.

We know there needs to be a culture change in the military, especially surrounding sexual harassment and assault. In your opinion, what aspects of Bill C-77 would work to modify that culture and strengthen the rights of victims?

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

Thank you very much.

Without the changes that Bill C-77 would bring to the military justice system, how difficult is it now for victims to access general information? What does the right to information mean to victims?

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Even though we're still dealing with some of the very pressing problems that my colleague was just referring to—3,000 cases—we haven't solved the issues yet. Bill C-77 is an important part of that. Do you see a role for Canada in teaching and training at the level of the UN on issues of military sexual trauma, abuse and assault?

[Julie Dzerowicz]

Part of what we're trying to do is.... There are a lot of changes happening at once. I was reading—and I think it just came out last week—that the Canadian Armed Forces thought there would be 1,000 sexual assault cases coming forward. I think we're at 3,000 right now. I think that says there have been a lot more than we originally thought.

I think that we have to deal with the sins of the past while we're changing the culture, which takes time. It does take time to change the culture, put new rules and processes in place, and then educate. I think that Bill C-77 is part of that. This is what we're trying to do all at the same time. All of that is really important.

You have made a number of excellent recommendations. You went through them really quickly.

[Marie-Claude Gagnon]

The preamble in the Canadian Victims Bill of Rights puts emphasis on the respect and dignity of victims, and that does not exist in Bill C-77, from what I've seen.

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

Thank you very much.

You talked about a preamble in the Canadian Victims Bill of Rights, and you feel that there should be a similar preamble in Bill C-77. You were speaking very fast, and you were trying to get as much information on the record as possible. I get that, and I thank you for it. However, could you give us a bit more sense of what you're thinking regarding that preamble? Bill C-77 already mirrors the charter somewhat.

I'd like to give you the opportunity to tell us a little bit more about what you think should be in that preamble.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

Could you recommend specific measures to improve Bill C-77? Is there anything you did not have time to mention in your testimony this morning?

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

Thank you.

We often talk about the benefits of creating the position of a victims legal counsel in the U.S. military justice system. That counsel helps sexual assault victims in the armed forces feel that they can confide in full confidence and safety.

Should Bill C-77 provide more than one liaison officer to victims of a military offence and give them access to counsel?