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.

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

Based on the statistics from the JAG annual reports over the last 10 years on summary trials, I do not see how Bill C-77 would change the landscape that greatly, considering the nature of the offences tried at the unit level and the sentences—the punishments—handed out at the unit level. Eighty per cent of trials are by delegated officers. They're not even by COs. They're by a major or a captain in the unit. COs do 16%.

The unit handles the minor disciplinary infractions, so I don't understand how Bill C-77 changes the landscape.

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

It was very critical. I guess one of the concerns is the Jordan principle and that there are a lot of delays in the judicial process. I'm unsure whether it's a shortage of lawyers or whether it's a shortage of investigators, but things aren't moving down the pipe in a timely manner.

Of course, now we have the Beaudry decision from the Court Martial Appeal Court, which suggests that these issues be tried in civilian court rather than through a court martial if they're committed in Canada. Of course, we have the delays in the civil system as well, mainly because of the lack of judges in some jurisdictions.

How do we get around this issue of delays? Does Bill C-77 fix that? I know the Canadian Armed Forces believes it does take off some of that pressure, because commanding officers will be making more decisions than military judges.

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

Correct. That is also very problematic, because there's a lot we don't know about the consequences of Bill C-77. The infractions will be defined in regulations. The procedures will be defined in regulations. There's nothing in the bill that tells us exactly where we're heading from an infraction point of view and procedure point of view, other than a “balance of probabilities”.

If we use, presently, the five minor offences as the standard for what should be a disciplinary infraction, we would use a process that would be quite similar to a summary trial. Presently in a summary trial, if the accused may be subject to a fine that's more than 25% of basic monthly pay, detention or a reduction in rank, that gives the accused the right to elect for a court martial. This you will not see in Bill C-77 should the infractions be basically the minor offences of today. This option would not exist.

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

In Bill C-77, the elective of going to a court martial is no longer available if it's considered a non-criminal offence. Is that right?

[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?

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

I have provided the clerk with my written submissions. They will be translated and then provided to the committee. I have 15 recommendations in my written submissions. I've also provided you with three annexes that contain what I think is useful information for when you are considering my submissions.

Yes, I do make recommendations pertaining to Bill C-77.

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

Thank you, Mr. Chair.

I want to thank our witnesses for appearing and for your testimony.

Ms. Fynes, again, our condolences for Corporal Langridge. I'm very familiar with the case. I was previously chair of the committee and the parliamentary secretary making sure that records were turned over so that you had them for information purposes and legal proceedings.

Lieutenant-Colonel Perron, thanks for your service to Canada. You've had quite a distinguished career—a Van Doo, a commando, a JAG and a military judge. You've done it all and seen it all.

To follow up on Ms. Dzerowicz's question, are you making recommendations for amendments to Bill C-77?

[Julie Dzerowicz, Liberal, Davenport, ON]

Thank you very much. I think that was important.

I will be reading through your recommendations again, because you've made a lot of them. They were very thoughtfully done. I really appreciate that.

I thought you also made very thoughtful recommendations, Lieutenant-Colonel Perron. Thank you for that.

I want to clarify something. I know you went through the different sections in your recommendations, and you had issues with some of them. I really appreciated that. You may have mentioned this at the beginning, but I want to make sure you did agree with the objective and our intention with Bill C-77 and what we're trying to do overall. I want to verify that you are supporting what we're intending to do with this bill, which is to ensure that victims receive the support they need and deserve, so that victims rights are actually enshrined within the National Defence Act.

[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 to 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 and 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 or 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.

[Pascal Lévesque, President, Criminal Law Committee, Barreau du Québec]

First of all, we welcome the fact that the Canadian Charter of Rights and Freedoms is being integrated into the act. The charter grants a right to information, protection, participation and restitution. However, the Barreau du Québec questions the scope of a victim's right to information in the context of paragraph (b) of the new section 71.04 introduced by the bill. Does this mean that the victim would have a right to personal information concerning the offender?

We are also in favour of creating the role of the victim's liaison officer, but we feel it might perhaps be desirable to require that the officer have a minimum level of training and the professional skills to occupy that position.

We also note and welcome the fact that new powers would be granted to military judges to facilitate the testimony of victims and witnesses. Victims may fear reprisals or pressures. These powers will therefore help ensure their safety. However, we wonder why the regime of protections and rights conferred on victims is limited to military offences and does not include service infractions. In our view, the act should protect victims from one type of offence and an infraction.

The second major feature of this bill is the paradigm shift with regard to the summary procedure. We note the will of Parliament to move away from a criminal justice system toward something resembling a system of disciplinary law. We are in favour of this initiative, which is designed to reduce military stigmatization and to make the trial process more efficient and fair, but we would remind you that this paradigm shift should not come at the cost of reducing the rights of military members.

By eliminating detention, the bill removes from a commander's sentencing options the authority to impose a sentence of detention of up to 30 days at a military detention facility. It seems desirable, at first glance, that military personnel should be less exposed to penal consequences, but the fact remains that serious questions arise over the effects of this removal.

With the detention option ruled out, it could be more difficult to address the types of misconduct committed in a theatre of operations. It is a more complicated proposition to conduct a court martial outside Canada. Would it not be more useful, in certain circumstances, to provide for detention, which would definitely be a harsher sentence, but one of shorter duration, in situations in which quick action is required? In our view, the problem is not detention, but rather its usefulness. The real challenge is to guarantee that the fundamental rights of military personnel are respected when they are faced with it.

Another effect of this reform of the summary procedure is a lowering of the evidentiary standard of beyond a reasonable doubt to that of a preponderance of probabilities. This seems consistent with the desire to depenalize the process. Despite this change in the burden of proof, however, military members still be exposed to serious consequences such as demotion and suspension of allowances and pay. This last sanction can have a significant financial impact on a service member.

If Parliament decided to abandon the burden of proof beyond a reasonable doubt, the path we feel should be favoured, there could be a compromise suggestion, along the lines of disciplinary law. To this meet the burden of proof, the evidence would have to be clear and convincing, and thus somewhere between "beyond a reasonable doubt" and a "preponderance of probabilities". We nevertheless prefer proof "beyond a reasonable doubt" for as long as service members are exposed to penal consequences. I'll come back to this later.

Now I'm going to discuss undefined expressions. The expressions "service infractions" and "minor sanctions" are not defined in the bill, but they will be in future regulations. This aspect raises concerns since we think there must be greater transparency and assurances that the bill's provisions are, from the outset, consistent with the Canadian Charter of Rights and Freedoms. Moreover, the spectre of what a minor sanction may be looms large.

Consider, for example, confinement to quarters or to ship, a penalty that can amount to deprivation of liberty similar to a conditional sentence as provided for under section 742.1 of the Criminal Code. In our opinion, minor sanctions must be defined in the act, and confinement to quarters or to ship must be considered as a serious sanction eliciting protections.

Now I will discuss procedural protections for service members. We repeat that it is necessary to provide better protection for service members, despite the removal of certain penal attributes of the military justice system's summary procedure. The reform neglects to provide certain procedural fairness protections, even as it moves closer to an administrative disciplinary law model applicable to professional associations.

The bill doesn't alter the fact that it's the commanders who determine whether service personnel have committed infractions and who impose sanctions, if need be. We understand that, by removing certain penal aspects from the present system, the bill makes the requirement of an independent decision-maker, within the meaning of paragraph 11(d) of the Canadian Charter of Rights and Freedoms, less necessary. The fact remains, however, that, when you compare this regime to the disciplinary regime applicable to police officers of the Sûreté du Québec or the Royal Canadian Mounted Police, military decision-makers are less independent. In our view, offsetting measures should be adopted to ensure that commanders perform their duties as impartially as possible.

There is another situation that we consider problematic, and that is the removal of the option to elect a court martial. We feel that, to the extent service members are still exposed to serious consequences for infractions that remain to be defined, it is desirable that this option be retained.

The bill is also silent on the representation of service members facing infraction allegations. For the moment, only lawyers of the Director of Defence Counsel Services are authorized to provide legal counsel and legal information—that's the term used in the regulations—but that information must be general in nature and pertain to the issues involved in the accused's summary trial, and counsel providing that information must distinguish between a court-martial and a summary trial. That does not seem to include the option of providing comprehensive legal advice or representing the accused. We find this problematic, since, by comparison, RCMP and Sûreté du Québec officers receive either real legal assistance or full representation.

We recommend that the legal services offered to service personnel be expanded to include at least an offer of full legal advice, at no cost, in preparation for trial and that they be given the option of electing a court martial.

The bill is also silent on the possibility of recording hearings and on the way decision-makers must provide reasons for their decisions. In our view, summary hearings must be recorded where possible, and, out of a concern for transparency, fairness and accountability, decisions should be accompanied by written reasons.

The bill provides that the decision or sanction imposed by a summary authority may be reviewed automatically or at the request of the person concerned in accordance with regulations made by the Governor in Council. In the circumstances, we wonder whether the review upon request or the automatic review under the present regime will be continued. Will decisions from summary hearings and review authorities be excluded from the field of application of the military grievance procedure because they are made in accordance with the code of discipline? In our view, once again having regard to the penal consequences to which service members are exposed, provision should be made for a right of appeal from summary hearing decisions. This appeal could be made following the review process and be possible only where the service member has suffered a penal consequence.

In short, having regard to the various points mentioned that we find problematic in this reform of the summary procedure, we think it may be better to defer it in order to give all necessary consideration to the protection of service members' rights.

Lastly, several amendments are designed to harmonize military and civilian justice, such as the addition, in clause 16 of the bill, of the option for a victim to seek an order to abstain from communicating him or her. We are very much in favour of this amendment, which will enable military judges to provide more effectively for victims's safety. However, we question the use of the term "victim", which we find restrictive. In our view, the term should be "person", as is the case in the Criminal Code.

In addition, the bill contains significant amendments pertaining to sentences. In particular, it requires that special attention be paid to the situation of aboriginal offenders at sentencing. Provision is made for sentences to be served intermittently. The bill also provides for the possibility of ordering suspension of a sentence and, lastly, the option of directing an absolute discharge.

Although the Barreau du Québec is in favour of these significant amendments, it questions, first, the reason why Parliament has limited the option of directing an intermittent sentence for periods of imprisonment or detention of up to 14 days, whereas this type of order can be made under the Criminal Code for sentences of up to 90 days. Second, we question the reason why a suspension may be directed only where incarceration or detention is required, the opposite of what is required under the Criminal Code. Lastly, we welcome the power of a military judge to direct absolute discharges, but we wonder why this power has not been extended to include conditional discharges.

In closing, the Barreau du Québec has noted the change in the essential sentencing objective, which is no longer to contribute "to respect for the law and the maintenance of a just, peaceful and safe society", but merely to the maintain discipline, efficiency and morale of the Canadian Forces. The Barreau du Québec feels that the previous wording was more consistent with the dual nature of military justice, which is both similar to a system of civil justice and unique.

That completes the review of the major issues that the Barreau du Québec wanted to address with you, Mr. Chair and members of the committee, as part of this consultation on Bill C-77. More detailed explanations of the various issues that we have just presented are provided in a brief that may be found on the Barreau du Québec's website, in French only, although you will have a bilingual copy as of November 16.

We hope our presentation has contributed to your study of this matter. We are now available to answer your questions.

Thank you.

[Siham Haddadi, Lawyer, Secretariat of the Order and Legal Affairs, Barreau du Québec]

Mr. Chair and members of the committee, first, we would like to thank you for inviting us here this morning to discuss Bill C-77. We are very pleased to be here.

My name is Siham Haddadi, and I am a lawyer with the Barreau du Québec. I am also the secretary of its Criminal Law Committee. I am here with M^e Pascal Lévesque, who is president of the Criminal Law Committee.

The Barreau du Québec's mission as a professional association is to protect the public and the rule of law. The protection of victims and the principles of procedural fairness are part of the Barreau's mission.

Given the time allotted to us this morning, we'll get right into the topic at hand.

First of all, we would like to say that the Barreau du Québec supports this legislative initiative, Bill C-77. In our view, this reform was needed to ensure that victims rights and Canadian values are respected. This bill was necessary to ensure that what are deemed minor infractions are handled as efficiently and fairly as possible.

However, we feel that some aspects of the bill are problematic and that it is important for us to point them out to you this morning.

Now I'll turn the floor over to M^e Lévesque, who will continue our testimony. Thank you.

[The Chair, Liberal, Stephen Fuhr]

I call the meeting to order.

Good morning, everyone. Welcome to the defence committee. My apologies for being a little bit late. We had votes and they went the usual 15 minutes for a stand-up vote, and then we had to travel over here. I appreciate your patience with us.

We welcome your comments on our review of Bill C-77.

Today we have with us Ms. Haddadi, from the Barreau du Quebec, secretariat of the order and legal affairs. We also have with us Mr. Lévesque, president, criminal law committee. As individuals, we have Sheila Fynes and Lieutenant-Colonel (Retired) Jean-Guy Perron.

Thank you all for coming.

Before I begin, I would like to acknowledge and formally recognize the death of Corporal Langridge, thank him for his service and acknowledge your grief.

I'm going to turn the floor over to Ms. Haddadi for opening remarks.

[The Chair, Liberal, Stephen Fuhr]

I'd to thank all three of you for appearing today on this very important matter of Bill C-77.

To summarize, I believe there was an undertaking from you to provide the committee with some information under section 98 and then the information on the number of restitution orders, as cited by my colleague. We would appreciate that in a timely fashion, as this is our highest priority and we are aiming to get this back no later than the 30th of November. Of course, we will need time to see this information, so time is of the essence.

I would like to thank the three of you for your service to Canada.

[Lieutenant-Colonel Geneviève Lortie, Director of Law, Military Justice, Policy, Department of National Defence]

Thank you.

I want to highlight that this right is already in force in the National Defence Act. It's something that was brought into force on September 1, 2018, as part of the Strengthening Military Justice in the Defence of Canada Act, which was known before as Bill C-15. Bill C-77 is adding provisions to that. It's giving more bones to it, but the right is already there in the act and can be used by courts martial.