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

[Alice Wong, Conservative, Richmond Centre, BC]

Mr. Speaker, I really echo all the things my colleague just mentioned.

I was a proud member of the Conservative government when we brought in the Victims Bill of Rights. The then attorney general was very clear that the purpose of the law was to protect victims, not criminals, and that justice needed to be done. That is why I supported the Victims Bill of Rights, because seniors were mentally, physically or financially abused.

I want to correct the parliamentary secretary. He said that the Liberal government created the ministry of seniors. For the record, it was a Conservative government that created the ministry, had the first minister of seniors and also the longest-serving minister of seniors.

I will go back to my question. I would like my hon. friend to tell the House how important it is that we value the contribution of the soldiers and veterans who have done so much, and yet they are still suffering because they were not well treated while serving in the forces.

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

Mr. Speaker, part of the treatment of our soldiers involves fairness before the courts.

Right now, certain punishments resulting from summary hearings can be penal in nature, however, there is no avenue to appeal to a higher or different authority. We put forth an amendment that would allow an appeal to a judge at the courts martial proceedings in the case of sentencing arising from a summary hearing that was penal in nature.

However, further to that, there is still a glaring hole in the legislation, in how fairness is applied across the ranks, for example, the right of a soldiers, seamen or airmen to defend themselves. As we saw in the case of Vice-Admiral Norman, there was no clarity on why the Chief of the Defence Staff denied him the funds to defend himself.

This legislation is still lacking, taking away the right of an individual, somebody who has served our military for so many years and with such honour, to be denied that, denying the individual the ability to defend him or herself based on the whim of the Chief of the Defence Staff who takes his orders from the Prime Minister.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Mr. Speaker, in response to the previous question I asked as to whether or not the member will be supporting this legislation, I really did not get a clear answer. She just spoke of problems that she sees with the bill. I am going to assume that she is going to support it, because other Conservative members have said that they will be supporting it.

I have heard other members talk about the previous version of this legislation that was brought before the House. The member was here at the time, so could she comment as to why, if this issue is so paramount to the Conservatives, the former Conservative government waited until literally days before the end of the parliamentary session to bring forward that particular piece of legislation? There is no way that they could reasonably have assumed that the legislation would go through the entire legislative process and receive royal assent within such a short window of a matter of days.

If the legislation was so important and is still so important to the Conservatives, why did they wait so long to bring that version forward and do it with literally just a couple of days left in the parliamentary session?

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

Mr. Speaker, we had a very copious legislative agenda. We put forth many laws and we see that they are either being undone or just disregarded because the Prime Minister does not like them. We heard that in testimony from the former attorney general yesterday. We have a situation of the Prime Minister and members of his cabinet, his key advisers, just disobeying and disregarding the laws altogether.

At the end of the day we are going to have to look at all of the legislation that the current Liberal government has brought through, because if we have a situation in which the Prime Minister himself has been obstructing justice, then we have to call into question everything that he has done. The only reasonable thing for the Prime Minister to do, as our leader stated, is resign.

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

Mr. Speaker, I have to take exception with the comments by the member for Kingston and the Islands that we did not introduce our bill until the dying days.

It is a fact that we brought forward two bills on military justice before Bill C-71 that passed.

It is a fact that one thing that Bill C-71 in the old Parliament did and that Bill C-77 does is enshrine the victims bill of rights into the military justice system. That did not pass until the third year we were government.

It is a fact that we moved that bill through as fast as we could at the end of the session.

It is a fact that the Liberals sat on it for three years before they brought in Bill C-77, which is a complete replica of our Bill C-71.

We did all the heavy lifting and we did all the hard work, but the Liberals sat on their hands.

I want to ask the member, who has served so well on the national defence committee for the past 20 years, if she would comment on why the previous minister of veterans affairs and associate minister of national defence would have resigned when she has such a passion for indigenous issues which are now enshrined in Bill C-77 through the incorporation of the Gladue decision. Why would she have stepped back when she was the former justice minister who believed in having a strong law in our Canadian society, especially in the Canadian Armed Forces?

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

Mr. Speaker, like the people of Canada who need to hear more about what really went on behind the scenes with our former attorney general and associate minister of Defence, once I have heard all of the evidence—and we are still on third reading—I will make up my mind as to how I will vote. Canadians deserve a full investigation, a public judicial inquiry, so that they too can make up their minds about the legitimacy of the Liberal government to continue.

[Serge Cormier, Liberal, Parliamentary Secretary to the Minister of National Defence]

Mr. Speaker, before I begin my speech, I would like to inform you that I will be sharing my time with my colleague from Marc-Aurèle-Fortin.

I am very pleased to rise today, as the Parliamentary Secretary to the Minister of National Defence, to support Bill C-77, an act to amend the National Defence Act and to make related and consequential amendments to other acts.

I want to first acknowledge the hard work that has gone into shaping this bill and getting to this point. Obviously that includes the work of members of the Standing Committee on National Defence and their clause-by-clause consideration of the bill earlier this fall.

I would also like to recognize the work and the outstanding dedication of the members of our Canadian Armed Forces. I think we all greatly appreciate the work they do every day. We are very grateful to them and we thank them.

The study in committee made it possible to tweak the language used in the bill for clarity and to debate important ideas raised by the public, particularly with regard to mental health issues. The result is a better bill and parliamentarians who are more aware of these issues. I therefore thank the committee.

The premise of the bill is simple. Our men and women in uniform deserve a military justice system that supports them in all they do, a military justice system that reflects Canadian values, works to eliminate discrimination of any kind, and ensures that victims are given a voice throughout the legal process.

Through Bill C-77, we are proposing important changes to our current military justice framework, specifically by enshrining victims’ rights before, during and after court martial proceedings. We are also strengthening the summary trial process to ensure that minor cases are disposed of in a non-penal, non-criminal process called summary hearings. In addition, we are seeking harsher punishments and sanctions for services offences and infractions motivated by bias, prejudice or hate based on gender identity or expression. Finally, we are ensuring that the specific circumstances of indigenous offenders are taken into account at the time of sentencing.

For example, the proposed summary hearings will help improve the flexibility and effectiveness of the military justice system by allowing the chain of command to address minor service infractions quickly and fairly at the unit level. Naturally, the most serious cases will be referred to the courts martial. There will be no summary process anymore, and military commanders who preside over summary hearings will only be able to impose non-criminal penalties for service infractions.

The changes we are proposing are long overdue. We recognize that we need to continually improve our military justice system so that it mirrors the civilian criminal justice system where appropriate, while acknowledging the important distinctions that exist between the two systems in order to account for the unique requirements of military life.

Our government is committed to making the Canadian Armed Forces a safe and welcoming place for all Canadians, both civilian and military. It is this same commitment that continues to motivate us as we work to finalize these amendments and enshrine them in law.

One of the most important sets of changes we are proposing is the introduction of the declaration of victims rights into the National Defence Act. This declaration mirrors the Canadian Victims Bill of Rights, applicable in the civilian criminal justice system. It enshrines rights for victims of service offences and enhances the support provided to them as they navigate the court martial process.

These changes include the right to information, which ensures that victims understand the process and the options at their disposal; the right to protection, which guarantees the victims' security and privacy; the right to participation, which allows victims to convey their views about decisions to be made by authorities in the military justice system; and the right to restitution, which entitles victims to seek restitution.

In order to ensure that victims are able to exercise these rights, they will be entitled to the support of a victim liaison officer. The victim liaison officer will help them navigate the military justice system and inform them about how this system operates. They will explain to victims how service offences are charged, dealt with and tried under the Code of Service Discipline. These are important changes that help put victims first, and I am proud to support them in the House.

The second set of changes we are proposing have to do with how the military justice system handles minor breaches of military discipline. Through these proposed changes, a new category of minor breaches of military discipline, called service infractions, will be created. These service infractions will not trigger a criminal record.

This change will allow the Canadian Armed Forces to handle minor breaches of military discipline in a fairer, simpler and faster manner. They demonstrate trust and confidence in our military leaders, who can address minor breaches of discipline at the base, wing or unit level.

Through Bill C-77, we are also working to address issues of gender-based prejudice and hatred in the Canadian Armed Forces. The bill parallels provisions in the Criminal Code that propose harsher sentences and sanctions for service offences and infractions that are motivated by bias, prejudice or hate, based on gender expression or identity.

The Canadian Armed Forces has zero-tolerance for discrimination of any kind. We are committed to eradicating these types of biases in our military ranks. That is why, through this bill and other initiatives, we are working to discourage behaviour motivated by prejudice or hate. This amendment will reflect this commitment and help the Canadian Armed forces continue to make progress in promoting inclusivity. We are ensuring that the military justice system is consistent with the civilian system when it comes to the human rights of the LGBTQ2 community. This bill represents another step in that direction.

Finally, we have made a significant amendment to align with the Criminal Code provision relating to the sentencing of indigenous offenders. For Indigenous offenders convicted of military service offences, historic injustices will be considered during sentencing. This sentencing principle acknowledges the historic wrongs that still negatively affect indigenous Canadians across the country.

These changes will also reflect the government's promise to advance reconciliation and renew our relations with indigenous people. We believe that these considerations are vital to the Canadian Armed Forces’ role in repairing our relationship with Canada’s indigenous peoples. Concrete measures like this will help us strengthen our nation-to-nation relationship and continue on the path to healing.

I am extremely proud of the important role that indigenous Canadians play in the Canadian Armed Forces. There are nearly 2,500 indigenous CAF members serving in the regular and reserve forces.

These proposed changes to the National Defence Act are key to supporting our women and men in uniform. Our military personnel are at the heart of everything we do. They are at the heart of the new defence policy, “Strong, Secure, Engaged”, because the women and men of the CAF make extraordinary sacrifices every day in service to their country. They deserve a return to a military justice system that ensures their voices are heard. They deserve a military justice system that maintains discipline and efficiency in the CAF while respecting our Canadian values. They deserve a military justice system that provides fair and equal treatment, regardless of race, orientation, or gender.

Bill C-77 proposes the changes required to reform the military justice system so that it continues to meet the expectations of the people of Canada and the needs of the Canadian Armed Forces. It presents an approach that is more focused on the victims and protects their rights.

This bill deserves our support because it seeks to establish a better military justice system for Canadians.

[Leona Alleslev, Conservative, Aurora—Oak Ridges—Richmond Hill, ON]

Mr. Speaker, it is an honour to be able to speak to this issue.

As a former member of the Canadian Forces, I am deeply concerned by the state of our military justice system in Canada. We are finding that military members do not have access to legal representation to the same extent that they had formerly. We are finding that operational commanders are recommending to proceed with disciplinary charges and only 50% of cases are actually going through, which undermines the good order and discipline of the military. We have also found that there is a lack of experience among the judges within the military justice system.

Bill C-77 does nothing to address any of those systemic challenges within the military justice system. I wonder if my hon. colleague could speak to that point. When will the government do something, and what, if anything, will it do to actually address the changes in the National Defence Act?

[Serge Cormier, Liberal, Acadie—Bathurst, NB]

Mr. Speaker, I thank my colleague for her question.

I can understand my colleague's concern. As we have said many times in the House, the former government had many opportunities to introduce this bill, but it chose to do so at the last minute, just before the last election.

With this bill, we are strengthening victims' rights. We have included indigenous peoples and members of the LGBTQ community. This bill not only strengthens the rights of victims in those two communities, but it also strengthens our military justice system and makes it fairer and more just.

That is the goal of the changes we are proposing; I hope my colleague will support the bill.

[Pierre Nantel, NDP, Longueuil—Saint-Hubert, QC]

Madam Speaker, I would like to begin by thanking my colleague for his speech. The general public may not be very familiar with military justice—as his colleague pointed out earlier—but there is no doubt these changes are desperately needed. They are tackling issues that have caused a lot of well-documented harm.

Based on his experience, would my colleague agree that this government's legislative agenda will have been rather slim?

Few substantive bills have been passed, and now that the end is in sight, they decide to move this sensitive subject forward. How long did it take them to get to this point—two years?

Last fall, when Bill C-15 came into force, the government could have made amendments that would have implemented all this right away. Victims in the military community are suffering. Why did the government take so long to introduce this?

[Serge Cormier, Liberal, Acadie—Bathurst, NB]

Madam Speaker, I thank my colleague for his question.

As he indicated, the previous bill was quite different from our bill. We included indigenous people and LGBTQ communities in ours. We want a good bill, one that strengthens victims' rights.

In his comments on the military justice system, my colleague mentioned that it can be difficult to understand. That is exactly why we want victims to be supported throughout the legal process.

That is why we are bringing in measures to ensure that victims have a better understanding of the military justice system, and that is why we want to create a fairer, more equitable system.

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

Madam Speaker, I am pleased to rise today to speak to this legislation, which will affect a part of Canada's justice system that is largely unfamiliar to many Canadians, including perhaps some members of this House.

Bill C-77 makes important changes to our military justice system, bringing it more in line with our civilian criminal justice system with respect to victims' rights and sentencing for indigenous offenders. It also makes this unique system more effective in dealing with minor breaches of military discipline.

Our government and the Canadian Armed Forces are committed to maintaining a military justice system that is fair, modern and robust. Canada maintains a military justice system that is separate from, but parallel to, the civilian system.

Our department has been active on many issues, including military justice reform. We will continue making equity and modernization a priority as we go forward implementing these important initiatives.

Canada has a world-class military justice system, which goes a long way toward helping the Canadian Armed Forces to accomplish their missions in Canada and throughout the world. The system reflects Canadian values and upholds the rule of law while meeting the unique needs of the military.

Some people may wonder why we have a military justice system. The reason is clear. Simply put, we need such a system to maintain discipline, efficiency and morale among those responsible for protecting Canadians, our values and our national interests.

There are many things that ordinary citizens can get away with doing without being sanctioned, even though those things may be inappropriate or even go contrary to relatively minor federal, provincial or municipal laws or regulations. However, it can be a lot more serious if a soldier does the same thing, particularly when he or she is participating in a military operation. A simple act of insubordination can compromise the cohesion of a military unit that must operate at the highest level of efficiency and solidarity. I am not exaggerating when I say that people's lives may depend on it.

Canada's military justice system is rooted in centuries of practice around the world. Monarchs, army generals and political leaders have long recognized the importance of having a disciplined military.

Just one year after Confederation, the new Parliament of Canada adopted the Militia Acts, which integrated the British Army Act into Canadian law. The Canadian Forces Legal Branch was created in 1918, just a few months before the end of the First World War. This was no coincidence. Canada's key role in the ensuing allied victory was a source of increased self-confidence.

From that point on, our military justice system evolved gradually, more specifically with the increased involvement of our military lawyers in courts of law. However, it was always clear that the commanders controlled the martial law system, and they primarily used it as a tool to enforce discipline. The military lawyers representing the Canadian Forces Legal Branch were simply there to advise tribunal members on procedure and evidence and to look for errors in law.

The first big change came after the adoption of the National Defence Act in 1950, which brought the military justice system closer in line with the civilian criminal justice system.

For instance, the act authorized appeals to the Court Martial Appeal Court and brought many penalties into line with those handed down in the civilian system. Only minor amendments had been made by the time two momentous events shook up the system in the early 1980s.

The first was the enactment of the Canadian Charter of Rights and Freedoms in 1982. Another reform stemming from a charter challenge allowed the accused person to choose between trial by a military judge alone or by a judge and a panel of military members.

All of these challenges led to a radical change that caused the system to stray from its primary objective, which is to help commanders maintain discipline. This gave rise to a complex, polished system that has adopted many of the characteristics of the civilian system, which is, of course, one of the most widely admired systems in the world.

Bill C-77 is the latest step in this process of evolution. If passed, it will make the military justice system fairer and more effective, without neglecting its key role of maintaining discipline and morale.

I firmly believe that the military justice system will remain an indispensable aspect of the armed forces for many years to come.

By passing Bill C-77 to improve and modernize this system, we will be helping the Canadian Armed Forces continue to meet their many crucial objectives, both in Canada and abroad.

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

Madam Speaker, I appreciate the good work the hon. member does on the defence committee, where I am pleased to serve with him.

When this bill was at committee stage, I proposed an amendment in committee to take advantage of this opportunity to remove the question of self-harm as a disciplinary offence from the military code of conduct. At that time, the Liberals in committee argued that it was beyond the scope of the bill and it was not the appropriate way to deal with this problem. Since that time, I have introduced a private member's bill, Bill C-426, which would do the same thing: remove self-harm from the military code of conduct as a disciplinary offence.

I wonder whether the member, at this point, having not supported that amendment at committee, is prepared to support my private member's bill to take self-harm out of the military code of conduct.

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

Madam Speaker, I would like to take this opportunity to draw your attention to our judge advocate general, of whom we are very proud. We fully support her important work.

Under the direction of the new judge advocate general, we have already started to act on some of the recommendations of the Auditor General. For example, we are implementing a case management system to track and manage cases as they progress through the system. We are extending assignments for defence attorneys and military prosecutors in order to better serve the accused and the Crown.

Under the leadership of the judge advocate general, we re-established the military justice round table, which the previous government abolished. This recreated group will bring together representatives from the entire military justice system to find solutions to military justice challenges.

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

Madam Speaker, I thank the hon. member for those comments on the round table and the role of the Judge Advocate General, but my question was very specifically about the amendment that was defeated through procedural manoeuvring, I will call it, in committee.

I will ask him once again. Does he support, at least in principle, the idea of taking self-harm out of the military code of conduct as a disciplinary offence? This stands as one of the major barriers, even if only at a symbolic level, to people in the Canadian Forces getting the mental health assistance they might need.