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

[Peter Fragiskatos, Liberal, London North Centre, ON]

Madam Speaker, I am not a member of the committee so I was not there for those conversations. It is my understanding, however, that the amendment to paragraph 98(c) was ruled out of order for a very understandable reason. Making that change went outside the scope of the committee's work, which happens on a regular basis in committees. The chair, in an objective way, ruled it out of order. That also happens on a regular basis for a variety of reasons.

If it was left there, then it would be problematic. However, our government takes issues around mental health very seriously. We have thought about it and the Minister of Defence has invited the Standing Committee on National Defence to put forward recommendations on how to address the specific issues around suicide and self-harm that the member points to.

In addition, we just talked about the centre of excellence, but that, and many other measures we have taken, are concrete evidence to me of how seriously the government takes advocating for the mental health of our veterans, past, present and future.

Bill C-77—Notice of time allocation motion

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Madam Speaker, I would like to advise that an agreement could not be reached under the provisions of Standing Orders 78(1) or 78(2) with respect to third reading stage of Bill C-77, an act to amend the National Defence Act and to make related and consequential amendments to other acts.

Under the provisions of Standing Order 78(3), I give notice that a minister of the Crown propose at the next sitting a motion to allot a specific number of days or hours for the consideration and disposal of proceedings at the said stage.

The House resumed consideration of the motion that Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, be read the third time and passed.

National Defence Act

[Richard Martel, Conservative, Chicoutimi—Le Fjord, QC]

Madam Speaker, I am pleased to rise in the House as the official opposition's national defence critic to once again speak to Bill C-77. I sit on the Standing Committee on National Defence with the members for Selkirk—Interlake—Eastman and Renfrew—Nipissing—Pembroke, who have a great deal of experience. Members will no doubt recall that I addressed them on the same subject on October 1, 2018.

Bill C-77 seeks to make changes to Canada's military justice system, which was created in 1950 and has undergone a number of legislative amendments over the years, more specifically in 1998, 2001, 2008 and 2013.

While the court martial system is similar to Canada's criminal justice system in terms of its independence and the burden of proof, courts martial are distinctly military. However, as my colleagues know, decisions at a court martial may be appealed before Canada's civilian courts, if necessary.

The existence of Canada's military justice system has been recognized over the years, particularly in the Canadian Charter of Rights and Freedoms, which makes reference to it. In a recent decision of the Supreme Court, in 2015, the judiciary upheld the requirement for the separate system by indicating that the existence of a parallel system of military law is deeply entrenched in our history and supported by compelling principles. The court martial system should help make the armed forces better at conducting operations and contributing to the maintenance of discipline, efficiency and morale. I examined Bill C-77 with that in mind.

As I pointed out last October, this bill is very similar to Bill C-71 that had been introduced by our Conservative government. The purpose of our bill was to bring our military justice system in line with the Criminal Code of Canada. Some of our proposed changes included writing the Canadian Victims Bill of Rights into the National Defence Act, limiting summary trials to six months and clarifying which cases would be eligible for a summary trial. Bill C-77, which is before us today, proposes the same changes.

Before I venture into a certain part of the bill that we see as problematic, I would like to strongly reiterate that the Conservatives will always protect victims of crime and make sure that they are treated fairly in the Canadian criminal justice system. In fact, it was our Conservative government that created the Canadian Victims Bill of Rights. Of course we will support integrating it into Canada's military justice system. That was precisely our main reason for introducing Bill C-71.

The Liberal government does not want to admit now that it copied us with Bill C-77, but the Liberals know perfectly well what they are doing. I do not blame them, for this is the right thing to do. However, it would be nice if my colleagues on the government side would act in good faith and recognize the excellent work we did on victims' rights under the previous Conservative government.

Honestly, that is the least they could do. The government should be non-partisan about this.

Overall, Bill C-77 is not a bad bill. However, there is something that bothers me about this bill and that is clause 25, dealing with division 5, which amends sections 162.1 to 164.2 of the National Defence Act.

This part is very different from what we had proposed in our Bill C-71. In Bill C-77, the burden of proof shifts from “beyond a reasonable doubt” to “on a balance of probabilities”.

This obviously does not afford the same level of protection to our men and women in uniform who are going into a summary hearing. Imposing criminal penalties by making decisions on a balance of probabilities rather than according to the principle of reasonable doubt opens the door to challenges under the Canadian Charter of Rights and Freedoms.

As I mentioned at the beginning of my speech, the parallel system of military justice is supported by the Canadian Charter of Rights and Freedoms. Unfortunately, the Liberal government did not support the amendment moved by my colleague from Selkirk—Interlake—Eastman. This amendment could have easily resolved the problem by changing “on a balance of probabilities” to “beyond a reasonable doubt”.

Now that Bill C-77 is expected to move to the next stage, I hope that the Standing Senate Committee on National Security and Defence will propose amendments to that effect.

In committee, retired Lieutenant-Colonel Jean-Guy Perron and the Quebec bar expressed doubts that the balance of probabilities could violate the rights enshrined in the charter.

The Conservatives support our Canadian justice system as set out in the Canadian Charter of Rights and Freedoms and the Constitution. However, we do not support a parallel justice system that violates our rights and freedoms.

This is one of the reasons why the report of the Standing Committee on National Defence approved on division some amendments to the bill.

In conclusion, I think members should remember that Bill C-77 is largely a copy of the Conservatives' Bill C-71. I would be happy to see the Liberals simply acknowledge the excellent work we did for victims rights and for them to acknowledge that they are just picking up where we left off by seeking to add a victims bill of rights to the military justice system.

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

Madam Speaker, it is important for us to recognize that a great deal of effort went into making sure that we had the right legislation.

The member made reference to the Conservative legislation. One of the biggest shortcomings in that legislation was that it did not have an indigenous factor, and that is a very important—

[The Assistant Deputy Speaker, Carol Hughes]

The parliamentary secretary's mike was not working, but the problem has been fixed and we are back in session.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, one of the significant differences within this legislation that the government has taken into consideration is the indigenous factor when individuals from indigenous communities make the determination as to becoming a part of the Canadian Forces. Special consideration is being given in that situation. That is a totally new aspect and was not a part of Stephen Harper's legislation.

When we talk about reconciliation and about establishing and enhancing the relationship between indigenous people and government and its many different agencies, including our military and so forth, we need to take into consideration things of that nature.

Does the Conservative Party support that completely new component, which Stephen Harper did not include in his legislation?

[Richard Martel, Conservative, Chicoutimi—Le Fjord, QC]

Madam Speaker, of course we support that.

I want to come back to something. The Liberal government does not want to admit that it is simply copying Bill C-77. They know full well that is what they are doing. I cannot blame them because that was the thing to do.

However, it would be nice if my colleagues in the government showed some good faith and acknowledged the excellent work we did on victims' rights under the previous government. Honestly, it is the least they could do and would be a good show of non-partisanship on their side of the House. The bill is almost a carbon copy of Bill C-77 introduced by the Conservative government.

I might ask why it took so long to introduce it in the House.

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

Madam Speaker, I want to thank my friend, the member for Chicoutimi—Le Fjord, for his great work on this bill. He is the associate shadow minister for national defence, and he sits on the national defence committee.

He heard a lot of testimony. In his speech, he raised the concern that no amendments were accepted by the government on the proposed new burden of proof and the balance of probabilities in the summary hearing process, which may be a charter right violation. We received some assurances from the JAG that it would work to put in place the right regulations to ensure that the balance of probabilities would be fair and charter compliant.

At committee, we heard from the Quebec bar and from retired court martial judge Lieutenant-Colonel Perron. Could my colleague speak to the testimony they brought to committee concerning how the proposed new burden of proof may violate the charter rights of those who have been convicted?

[Richard Martel, Conservative, Chicoutimi—Le Fjord, QC]

Madam Speaker, I thank my colleague for the question.

It was extremely important. What retired Lieutenant-Colonel Perron said was extremely important.

Another thing people need to know is that the Conservatives will always protect victims of crime and ensure that they are treated more fairly in the Canadian justice system

[Bardish Chagger, Liberal, Leader of the Government in the House of Commons]

Madam Speaker, it is nice to see that there is support for this legislation.

I have no problem acknowledging that the previous government did work on this file. I agree that we have been able to add components to the bill. It is nice to hear that there was work done at committee. More rigorous debate is always something we need to consider.

Would the member agree that this legislation should be sent to the Senate as early as possible? If so, why not send it to the Senate today?

[Richard Martel, Conservative, Chicoutimi—Le Fjord, QC]

Madam Speaker, we appreciate that.

The bill will take its course. We look forward to the next stages.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, I like the question posed by the government House leader.

This is not the only legislation. We also had Bill S-6. The Conservative Party is saying that it welcomes and likes the bill and that it will vote for it, but it seems that with every piece of legislation it likes, it would like to have virtually endless debate.

Could the member opposite tell me why even when opposition members support legislation and want us to pass it, they feel obligated to continue talking about it endlessly?

[Richard Martel, Conservative, Chicoutimi—Le Fjord, QC]

Madam Speaker, we have to make sure that everything is going to work well and that everything is taken into consideration.

[Bardish Chagger, Liberal, Waterloo, ON]

Madam Speaker, I just want to ask the member opposite about the reason he just gave. The bill went through the process. It went through first reading and second reading. The committee did its work. Today, we are not seeing very many members asking questions.

We are the only two people asking questions, because we know that everyone has had a chance to speak and share their thoughts.

We know that the small number of changes recommended by the opposition could be considered by the senators. I think that if we give them a chance to do this work, we could move this file forward for the sake of all veterans, the people we work hard for in this chamber.

I hope my hon. colleague will pause for a moment and consider that the way to move democracy forward is to move this bill forward.

Why can he not consider other opinions? Why must he only listen to the Conservatives?