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.

[Col Stephen Strickey]

With Bill C-77, as the JAG alluded to earlier in her testimony, certainly one of the rights that will be given in the declaration of victims rights is restitution, in which the court will and must consider a restitution order and as well have that restitution ordered as a civil court judgment if not paid. Certainly it is one of the four primary rights given in the declaration of victims rights, which mirrors, of course, the Canadian Victims Bill of Rights in the civilian system. It certainly emphasizes the points that these quasi-constitutional rights are important to victims.

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

We will take note of that. Maybe there will be a chance to circle back to her. Thank you.

Finally, Mr. Chair, I wanted to ask a question on the importance of restitution under the current military justice system and as it's transformed by Bill C-77. When does restitution come into play, how significant is it to a victim to be able to ask for restitution, and under what circumstances would restitution even be a factor?

[Cmdre Geneviève Bernatchez]

What I want to repeat here, as I said yesterday, is that I've given my personal commitment to see through the implementation of the management action plan, because it is extraordinarily important for me that the military justice system remain a system that is not only in fact legitimate, in fact answering the requirements of the Canadian Armed Forces, but is also seen as extremely important.

Regarding how Bill C-77 would address the issue of timeliness and the issue of delays, what I want to say again is that keeping at the unit level the minor disciplinary breaches removes the penal, criminal consequences that are currently attached to the summary trial process, which triggers a series of rights for the accused in accordance with Canadian law and with the Canadian charter in order for the summary trial to be the legally sound system that it is. To simplify the process, we remove the penal and criminal consequences from these types of infractions. We ensure that there is no criminal record associated with them. They are simple, basic disciplinary issues addressed at the unit level.

What does that mean? It means that we do not have to offer the right to election to the accused person. It means that we can streamline the process and decide at the outset that it will be one forum or the other. As a result, it cuts the time that it takes for a matter to get resolved, so we answer directly the Auditor General's preoccupation about the overall timeliness of the military justice system.

If it gets addressed by a summary hearing quickly or goes to court martial to start with, you remove all the delays that are associated with election, referral of charges from one level to the other, review of charges by legal officers and the legal advice that needs to be provided in that process. You remove the time taken for that, streamline the process and reduce delays.

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

Thank you, Mr. Chair.

Commodore Bernatchez, in your comments back and forth with Mr. Martel, you mentioned that you were going to provide information on how many people have been charged under section 98. Could you also provide greater clarification, if it's possible, of how many were under paragraphs 98(a), 98(b) and 98(c)—malingering, feigning and so forth—just so we have that picture? Also, it would be useful for the committee if you could give us information on paragraph 98(c), as to whether or not those individuals were offered treatment for mental health challenges they may have been dealing with.

We talked a little bit about the impact of Beaudry, and I did ask you this question yesterday with regard to the Auditor General's report. It was a very critical analysis of how military justice has been carried out. Under Jordan, justice delayed is justice denied. Now that we are, as Ms. Gallant said, sitting in limbo until we find out what we're doing with Beaudry, my concern is with how we are going to determine whether or not the principles of Jordan are being respected under military justice.

I thought you gave a good explanation yesterday about how Bill C-77 will help streamline processes and reduce the backlog that has caused problems during the time frame that the Auditor General did his analysis.

[Cmdre Geneviève Bernatchez]

You will be hearing from a lot of expert witnesses throughout the analysis of this bill. I think it is for this committee to arrive at a determination of the legal policies that should be taken into consideration.

For sure, a bill like C-77 presents an opportunity to address Parliament's preoccupation and considerations to ensure that the military justice system remains on pace with Canadian laws and values.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you, Mr. Chair.

Given that we have limited time today, I want to make one remark on your testimony, on the section considering the circumstances of indigenous people. It is that I had some questions and concerns, but your testimony has already reassured me on those grounds.

I want to return to section 98 and ask two different things.

Given that Bill C-77 is about reforming the justice system, that changes some infractions and adds some penalties. Would you think that removing proposed paragraph 98(c) would be within the general purposes of this bill? In other words, would it fit in this bill in reforming military justice, or not?

[Cmdre Geneviève Bernatchez]

Bill C-77 is attempting to put in place a summary proceeding system where the units would maintain their responsibility for settling the most minor breaches to the Code of Service Discipline. This means arriving late for work or not wearing an appropriate uniform, for example; the list of these infractions has not yet been drawn up. As these infractions would be handled by unit commanders or their delegated officers, the procedure would be simplified. Only the most serious cases would be referred to court martial, which would simplify the process and reduce delays. This would be a direct response to one of the concerns of the Auditor General.

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

How will Bill C-77 improve the speed and fairness of the summary trial system for minor infractions to military discipline? Will this have an impact on the delays mentioned by the Auditor General in his spring report?

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

We know that the military justice system can be hard to understand. In what way will the designation of a liaison officer, as set out in Bill C-77 to help victims navigate the military justice system, help to guarantee that those victims' rights will be respected?

[Cmdre Geneviève Bernatchez]

Bill C-77 does not specifically address the Jordan decision because it is a matter of law in Canada that there is an 18-month time period that is afforded for a matter to proceed.

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

Does Bill C-77 encompass the ramifications of the Jordan decision?

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

If the charges are dropped in a military court with Bill C-77, is there the option for the victim to take them to civilian court, or once it has been tried in a military court or not tried, is it not able to go forth to civilian court?

[Julie Dzerowicz, Davenport, Lib.]

Thank you so much, Mr. Chair.

Thank you so much for being here. I'm glad that we finally have Bill C-77 on the table.

I was very much impacted—and I'm sure many across this country were—by the Deschamps report that talked about the rampant sexual abuse within the Canadian Armed Forces. I know that we have Operation Honour in place. I know that we have Bill C-65. I know that this bill will also be part of helping to address some of the findings in that report.

Could you outline to me how Bill C-77 will help female victims of sexual assault? What improvements in here actually help female victims of sexual assault?

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

Are you in a position to comment on where Bill C-77 places us with respect to our trusted coalition partners when we go overseas and do peace operations, for example—the U.K., France, the United States? How do their legal frameworks compare to ours? What does Bill C-77 accomplish with respect to how we stand up with our allies on these issues?

[Colonel Stephen Strickey, Colonel, Deputy Judge Advocate General, Military Justice, Department of National Defence]

To add to what the Judge Advocate General has mentioned, the aggravating factors do mirror section 718.2 of the Criminal Code.

I would add as well that traditionally we have done research in the JAG annual reports on breaking down various offences, so as the JAG alluded to, we're not clear if this has had a significant effect. Those are certainly things we will look at now that the provision is in place.

As a little bit of history on the provision, I can tell you that the addition of sexual expression as an aggravating factor in section 718.2 was part of Bill C-16, which, at that point, did not take into account Bill C-77. What this does in effect is, as the JAG mentioned, mirror section 718.2 to track the current language in Bill C-16.