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

[Mark Eyking, Liberal, Sydney—Victoria, NS]

Madam Speaker, the hon. member asks how we can help indigenous people in the armed forces, help them feel more comfortable and help them feel that they are part of the team. I see it right back in Cape Breton, where, as I said, we have the largest population in eastern Canada of first nations people. We see them starting as cadets. We see them in the reserves. We also have to show them respect and show that if things go a little sideways for them, we can help them through it.

Could we do more? Yes, we could. However, it starts at a very young age. The role models who have gone before them have done a great service. That is where I see it happening.

I know that this program I am talking about today is more or less to help them when they get into serious situations. We all can do our part. Also, we have to make sure that we can tell them—

[The Assistant Deputy Speaker, Carol Hughes]

We do have to allow for other questions, so maybe the member will be able to finish his train of thought with the next answer.

Questions and comments, the hon. member for London North Centre.

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

Madam Speaker, I was sad to learn recently that my hon. colleague is not running in the next election. I think he was elected in 2000, if I am not mistaken, nearly 20 years ago. I can tell members, as a newer member of Parliament, only elected in 2015, that he is one of the most respected members of our caucus, particularly among those who are new to this game, if I can put it that way. Sometimes it seems like a game when I hear the members opposite.

The member has seen a lot over the course of his career over the past nearly 20 years. Could he comment on the evolution of issues around indigenous folks and LGBTQ2 folks, particularly with reference to the military as well as in general terms? Bill C-77 incorporates a lot of those issues, and it is progress that I am not sure we would have seen even five years ago.

[Mark Eyking, Liberal, Sydney—Victoria, NS]

Madam Speaker, I only have so much time, but it was alluded to that this might be my last year, after 19 years.

I will let the House know that some of my most disappointing moments and most proud moments were in dealing with our Veterans Affairs office in Cape Breton. When the previous Conservative government closed that office, it was a major blow for our veterans and for indigenous veterans. One of my most proud moments was when the Prime Minister came back and reopened that office. I see every day veterans going in there and getting the services they need face to face.

Cape Breton has one of the highest contributions of people to the military services, and they deserve that service. I appreciate the question from the hon. member. I have to say that one of my proudest moments was when we opened those Veterans Affairs offices, especially in Cape Breton.

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

Madam Speaker, it is an honour to speak to Bill C-77.

In November of 2017, the Prime Minister rose in the House to issue a formal apology to members of Canada's LGBTQ2 community for historic injustices inflicted upon them in this country.

Today I am proud to rise in this chamber to speak about the steps our government continues to take, through Bill C-77, to protect this community. First, I wish to offer some historical context so that we can all understand why this aspect of Bill C-77 is so fundamentally important.

Canada has a history of policies, practices and federal legislation that led to the oppression of and discrimination against LGBTQ2 people in our country. Consenting adults were charged, prosecuted, persecuted and punished for engaging in same-sex relationships. From the 1950s and for nearly 40 years straight, the Government of Canada undertook a systemic campaign to persecute employees who were, or were suspected of, being members of the LGBTQ2 community. Instead of being respected and appreciated for their public service, they were fired, discharged or bullied into resigning through a campaign that became known as “the purge”. It is a shame on our history.

In the Canadian Armed Forces, treatment of LGBTQ2 members was no better. From 1967 until 1992, the Canadian Armed Forces policy on homosexuals was contained in Canadian Forces administrative order 19-20, an order that reflected the government's policy of the time.

The CFAO and other discriminatory policies prohibited the recruitment or retention of homosexuals in the public service, the RCMP and the military. During that dark period, Canadian Armed Forces members were spied on, interrogated and persecuted by their brothers and sisters in arms and those who led them, and by the very institutions to which they had dedicated their lives, namely, this Parliament.

Friends were encouraged to spy on one another and turn on each other for the grave crime of doing nothing more than loving who they loved. They were treated with terrible indignity and then they were forced out of the Canadian Armed Forces and stripped of their ranks, their life's work and their futures as members of the military. Most notable of all is that so many members of the LGBTQ2 community chose to hide their true identities so that they could serve the country, despite its great intolerance and rejection of them.

We ask members of our Canadian Armed Forces to put service before self. So many in the LGBTQ2 community have modelled that ethos, demonstrating incredible selflessness and tremendous bravery along the way. Today, we are working hard to make reparations for the harms that were inflicted on members of this community.

An LGBTQ2 class action final settlement agreement includes recognition measures, broad-based reconciliation and memorialization of measures for the Canadian Armed Forces, RCMP members and other government employees affected by discriminatory policies. It also includes measures for individual compensation.

Upon request by affected members, a Canada Pride Citation and a letter of apology will be awarded to them by the Canadian Armed Forces. Also, upon request by an affected member, a note may also be added to the file of any former member who was investigated, sanctioned or released to make it clear that the release was the result of wrongful policy by the government or the forces.

We know that no apology or reparation can undo the damage by these abhorrent policies. However, it does not discharge us from the fundamental responsibility to do everything in our power to turn things around and make sure such injustices are never committed again in our country.

Today, LGBTQ2 Canadian Armed Forces members have the same rights as any other Canadian Armed Forces members to work in a harassment-free workplace and to be treated with dignity and respect. Since taking office, we have taken concrete and sincere steps to end harassment in federal workplaces.

Going forward, we are going to ensure our approach to harassment is victim-centric and that those who experience harassment have the support they need. Our mission here is nothing less than culture change. We owe it to our men and women in uniform to get this right.

The defence policy “Strong, Secure, Engaged” reaffirms the Canadian Armed Forces commitment to increasing and promoting diversity and inclusion among its personnel. Many policies and initiatives have indeed been implemented to make this commitment a reality. The defence team has appointed diversity champions, for example. They have also worked towards integrating gender-based analysis-plus into all defence activities, from the design and implementation of programs and services that support our personnel, to equipment procurement and operational planning.

In January of last year, the forces implemented a positive space initiative in support of LGBTQ2 members. The intention is to foster the creation of a safe and inclusive work environment for all individuals, regardless of their sexual orientation, gender identity or gender expression. It is a volunteer and peer-based support group for all LGBTQ2 community members and allies to allow them to create networks and seek information and assistance from positive space ambassadors.

The promotion of diversity and inclusion is a core institutional value that is supported through leadership, communications and activities at all bases, wings and across the organization. The defence team has been working through initiatives, like the positive space initiative, to help create inclusive work environments that really value everyone involved, regardless of sexual orientation, gender identity or gender expression.

Many of those efforts mirror those that have been made by our government more broadly, and this is where we circle back to the bill before us today. In June 2017, our government added gender identity and gender expression as prohibited grounds of discrimination under the Canadian Human Rights Act. Bill C-77 will bring the military justice system into alignment with aspects of the civilian criminal justice system, specifically section 718.2 of the Criminal Code.

Let me be clear about what these changes mean. Bill C-77 calls for increased sentences for service offences and increased sanctions for service infractions when there is evidence that they are motivated by bias, hate or prejudice based on gender expression or identity. Targeting people for their gender expression or identity is especially egregious. There is simply no room in Canada for that kind of hatred. We are proud that Bill C-77 reflects that fundamental value.

This focus on deterring crimes based in hate for those whose gender expression or identity differ from our own is just one more step in significant progress the forces has made in changing its culture to one of greater inclusivity and diversity. These changes will help the Canadian Armed Forces ensure it remains an institution based on honour, honesty and integrity. In that sense, the gender expression and identity clause of Bill C-77 is very much aligned with the military ethos as well.

In closing, I am proud of the work the Government of Canada has done to right historic wrongs against the LGBTQ2 community, something that folks in London have called for for a long time. I am glad to see our government put these changes into place. I am proud of the work the Canadian Armed Forces is doing to build a diverse and inclusive military for all Canadians. I am proud to stand today to highlight a small but essential inclusion in Bill C-77, which makes clear our steadfast belief that there is no room in Canada or in our military for such discrimination ever again.

[Anita Vandenbeld, Liberal, Ottawa West—Nepean, ON]

Madam Speaker, I want to thank my hon. colleague, the member for London North Centre, for his commitment to our armed forces and particularly those LGBTQ2 members.

As somebody who has served as a civilian peacekeeper in both Bosnia and Kosovo, my life, every single day, depended on the NATO forces and the Canadian Forces that were there to protect me. When we have our armed forces put themselves in harm's way for us, we need to make sure that if they come home injured they will get the support they need, both physically and mentally.

I would like to ask my hon. colleague about the $17 million that our government is providing to the Royal Ottawa Hospital to create a centre of excellence for military members and their families, and veterans. Could he elaborate on how important it is to provide those mental health supports?

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

Madam Speaker, my hon. colleague is modest and she will not tell us this, but this is an individual member of Parliament who has committed her life to democracy and activism, both in this country and abroad. We are very fortunate to have her in the House. I work with her on the Subcommittee on International Human Rights and that committee is strengthened because of her presence.

The centre for excellence is something the member advocated for. As an Ottawa-based member of Parliament, she is very proud of it, as she should be. As a country, we need to come together on a non-partisan basis to make sure that these issues around PTSD and other mental health challenges faced by our veterans are dealt with in a meaningful way. The centre of excellence is doing that work. I am proud to see that our government invested no less than $17 million towards the centre to make that happen.

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

Madam Speaker, I appreciate the member's comments on standing up for those in the Canadian Armed Forces who are dealing with operational stress injuries, like PTSD. One of the things we have to do is destigmatize issues of mental health, especially for those who serve as our first responders.

We brought forward an amendment at committee that was unfortunately ruled out of order. It would have deleted paragraph 98(c) from the National Defence Act, which deals with self-harm. Under it, those who attempt suicide could actually be charged with a criminal offence and be court-martialled in the military justice system.

Would the member support finding an expeditious way to remove 98(c) on self-harm and make sure those who right now are too afraid to step forward with mental health issues because they are concerned they might be charged under the National Defence Act with malingering or self-harm get help? They are crying for help and we should do everything to make sure the rules, regulations and legislation get this right.

[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, Chicoutimi—Le Fjord, CPC]

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?