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

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

Madam Speaker, our government is committed to the care, health and well-being of our military personnel and their families. We recognize that we need to continually adapt the way we care for people with mental illness. That is why the minister has asked the Standing Committee on National Defence to examine the issue of suicide and self-harm within the Canadian Armed Forces with a view to making recommendations to the government for dealing with these challenges.

These recommendations will build on other investments we have made in mental health, including in launching the joint suicide prevention strategy with the Minister of Veterans Affairs. The strategy would promote the well-being of CAF members and veterans and provide help in times of crisis.

Budget 2017 commits $17.5 million for a centre of excellence with a focus on the prevention, assessment and treatment of post-traumatic stress disorder and mental health issues among military personnel and veterans. Taking care of our soldiers, our veterans and their families is a priority for our government.

[The Assistant Deputy Speaker, Carol Hughes]

We have time for a brief question.

The hon. parliamentary secretary to the government House leader.

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

Madam Speaker, the legislation has had significant modifications since four years ago. There would now be indigenous considerations taken into account. Even though have seen the legislation around for a few years, it was really important for the government to take into consideration that aspect. I believe those changes to the legislation are very good and welcomed by the different stakeholders.

I would like my colleague's thoughts on how important it is to incorporate the indigenous factor in the legislation.

[The Assistant Deputy Speaker, Carol Hughes]

I asked for a brief question. Time is up.

I will let the member quickly respond to the question.

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

Madam Speaker, I would like to draw your attention to the fact that, from the outset, this new defence policy, which was unveiled in June 2017, put our people at the forefront of our priorities and of all we do within the Canadian Armed Forces for years to come.

We have a concrete vision informed by diligent consultation with fellow citizens from coast to coast to coast. The commitments we have made to our men and women in uniform will provide them with a more dynamic, more prosperous and resolutely positive work environment that guarantees respect for individuals and individual rights.

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

Madam Speaker, I am pleased to rise today to support Bill C-77. It has a title that would not let anyone know what it is about. It is called “an act to amend the National Defence Act and to make related and consequential amendments to other acts”. What it really ought to be called is “a bill to complete the process of military justice reform”. That is the basic reason we in the New Democratic Party are in favour of the bill. We are in favour of it despite its tardiness, and we are in favour of it despite it missing a major opportunity to take an action I will talk about later.

Certain key provisions here are important, and I think we have all-party support for adding these to the military justice system. The first of those would provide greater rights and protections for victims in the military justice system. What the bill would do is align the military justice system with the civilian justice system and align it with the Canadian Victims Bill of Rights. That means that there would be rights for those involved as victims in the military justice system to be kept informed of the progress of their cases and to get key information about the process in terms of timing: when things will be heard and when they will be resolved. This is something that is not in the military justice system presently.

The second of those rights for victims is that victim impact statements would be allowed in the military justice system in the same way they are allowed in the civilian justice system. That is an important reason to support the bill.

The second reason, which was mentioned just briefly before I stood to speak, is that the bill would bring the military justice system into conformity with the Gladue decision of the Supreme Court in 1999. which allows justices to take into account the circumstances of aboriginal offenders in determining sentencing. The same principle we have been using for 20 years in the civilian justice system would be applied to the military justice system. It is a bit tardy, but it is a good thing to do.

The bill completes most of the military justice reforms that have been worked on for more than 15 years. They were mostly introduced by the previous Conservative government. In its bill, for some reason, the victims rights pieces were left behind. That was a bit surprising in that it was the Conservative government that was bringing forward the reforms, and it was the Conservative government that was the big proponent of the victims rights act. It was a bit peculiar that it was left out, but here it is again. It is a bit tardy, but it is in this bill.

The government passed most of the major military justice reforms in 2013. Here we are, six years later, still dealing with a bill to complete those reforms.

There are some oddities in the military justice system that would be cleared up here. One of those is the fact that there is no requirement to keep transcripts of all military justice proceedings. A summary hearing can be held without any record of that hearing being held. Therefore, it can become very difficult for anyone to appeal a decision from one of those tribunals when there is no written record of it. That is one of the things the Conservatives brought in in their original bill, which was quite positive, as well as better protections against self-incrimination, which did not exist in the military justice system, even though they are required by the Canadian Constitution and the bill of rights. Those were some of the things that were in the 2013 bill that were necessary. This bill would fully implement some of those changes.

What I do not understand is the great delay in getting this done. Both the Liberals and the Conservatives were slow to act on what were clearly needed reforms in military justice. I am not sure why the Conservatives did not complete the job on their watch. They only got as far as Bill C-15, and they introduced Bill C-71 in the dying days of the last Parliament, which is essentially the same as Bill C-77.

Having criticized the Conservatives for being slow, I will criticize the Liberals for being even slower, because they had the Conservative bill, Bill C-71. This bill, Bill C-77, is essentially the same bill, but it took them two years to bring it back to Parliament.

The other part of this is that neither the Conservatives nor the Liberals acted expeditiously to get the sections of the original Bill C-15 proclaimed. That bill passed in 2013, and it was not fully proclaimed. It was not fully enforced until September of 2018. We had five years before the legislation was actually put into practice. Some of that was through funding not being made available for the necessary changes, especially in terms of staffing the military justice system. Some of that is simply inexplicable to me. I do not know why it took them so long to get this done.

Again, as I mentioned, it took the Liberals two years to introduce a bill virtually identical to the one the Conservatives introduced in 2015. That makes no sense at all.

What we are doing in Bill C-77 is important, not just in the narrow sense of the military justice act but because of lots of other provisions for military justice and the operations of the military. One of those is Operation HONOUR, which is the military's attempt to deal with sexual harassment and sexual assault in the military. One of the key things here in Bill C-77 is that better supports would now be mandated by law for victims of sexual harassment and sexual assault in the military justice system. This is a supporting measure to Operation HONOUR, which has its big challenges. It has not been entirely successful.

We had former Supreme Court justice Marie Deschamps before the committee on February 7. It was her report on sexual harassment and sexual assault in the military that sparked some of these changes that are now taking place. What she cited was a reluctance that remains in the military to report sexual harassment and sexual assault, and what she said very clearly to us in the committee was that the solution to that is better support for victims at all stages.

Bill C-77 provides that support when we get to the formal stages for sexual harassment and sexual assault, but Madam Deschamps was very clear that there needs to be better support for victims before the formal processes begin. That is something that is not in Bill C-77. That is something that is not mandated by law. However, I do not think that is a necessity. The Canadian Forces could obviously begin to put in place those better supports for those who have been subjected to sexual harassment and sexual assault when they first make it known to their supervisors or to others in the military system. If they make those supports known and make those supports available, we will get better reporting and we will get better handling of all those cases.

There is still more work to do before the formal legal stages that are being dealt with in Bill C-77. I certainly encourage the leadership of the Canadian Forces to act quickly to get those supports for victims in place.

The other reservation I have in supporting this bill is that it has missed a huge opportunity. That is an opportunity to help deal with another serious concern in the Canadian Forces, and that is the problem of death by suicide in the military.

Over the past 15 years, we have lost 195 serving members of the Canadian Forces to death by suicide. That does not include reservists. The government has admitted that we do not do a good job of keeping track of death by suicide among reservists. The 195 is only those in the Canadian regular forces. We know the number is far larger.

We know that those who are young men between the ages of 25 and 30 are 250 times more likely to take their own lives if they are in the Canadian Forces or are veterans. Something is going on, with the difficult and dangerous work we ask people to do, that results in mental health challenges that we are not responding to in an effective manner.

In November 2017, we had the announcement of a joint DND and Veterans Affairs suicide prevention strategy. I applaud the military for having such a strategy. Again, it is a little tardy, but okay, let us get moving on this. Its focus was on providing more support for those who are facing mental health challenges and more training for all staff within the military, including chaplains and others who are assigned to support those serving members, in how to spot signs of suicide and how to deal with those suffering this mental health injury that has led to self-harm.

That strategy, as I said, was put in place in November 2017. Unfortunately, in 2018, we had 15 more serving members and two members of the reserves die by suicide. That is in one year, 2018. One of my colleagues is signalling that the government's count was two, but there were probably actually five—

[An hon. member]

Forty-five.

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

Forty-five? Again, we do not have a good count of the reservists.

We know that even though the strategy was put in place, this continues to be a serious challenge for the Canadian Forces. It is a challenge, obviously, on the humane grounds of taking care of those we ask to do difficult and dangerous work.

...it is disturbing that even today under paragraph 98(c), a service member could face life imprisonment for attempted suicide. It would be more appropriate to consider self-harm under such circumstances as being symptomatic of a serious and urgent mental health concern, and signalling the need for appropriate and immediate medical intervention.

She is calling on us to make sure those supports are available, to make sure those barriers are removed. She said very clearly:

There is no benefit to leaving paragraph 98(c) in the National Defence Act, nor is there a downside to removing it. In my heart, I believe it is morally responsible [to remove this section].

I do not mean to be too crass here, but it is also a challenge when we invest in people to serve Canada and the result of that service is that we lose their skills and their contribution because of mental health problems.

The Canadian military has said it is committed to removing obstacles to providing mental health assistance for those who need it in the Canadian Forces. When the bill came to committee, I moved an amendment to it that would remove the largest symbolic and practical barrier to providing mental health assistance for those who are considering self-harm. That is paragraph 98(c) of the National Defence Act, which makes self-harm a disciplinary offence.

When I talk to people outside the Canadian military, their reaction to this situation is that 30 years ago, in civilian life, we moved way beyond regarding attempted suicide as the fault of the individual and began to treat it as a mental health issue, as an illness that could be dealt with and treated.

In the National Defence Act, to which all recruits are trained, it says self-harming is a disciplinary offence. In practice, when I talk to leaders within the military, I hear that this measure is not used very often and is rarely applied, but the fact that it exists and presents self-harm as a disciplinary offence creates on onus on the individual not to seek help, because what they are considering may become not just a mental health issue but a blot on their military career. It creates another obstacle to reaching out for help.

We heard moving testimony from witnesses at committee, including Sheila Fynes, whose son died by suicide while serving in the Canadian Forces and who did not get the help he needed despite repeated attempts to harm himself while serving. Instead he was subjected to discipline several times as the solution to his problems, instead of being recognized as suffering from a mental illness and receiving the treatment he needed.

Ms. Fynes is most dignified and has resisted all tendencies to become bitter about what happened with her son, instead working tirelessly with 161 other families of those who died by suicide to try to make sure this does not happen to any other families. Here is what she said at committee:

Other witnesses spoke from their experience within the Canadian military as commanders who faced these crises. One of those was retired Lieutenant-Colonel Jean-Guy Perron, who appeared before the committee last November, noting that paragraph 98(c) refers both to self-harm and also to asking someone else to do harm. He said clearly that there is no downside to removing section 98(c) as it refers to self-harm and went on to say that if the worry is about someone in the armed forces asking someone else to harm them, that's already covered by lots of other regulations. Assault is the main one that would apply. If a serving member asks someone else to harm them so they can get out of service, that person is already guilty of offences if they carry it out. He saw no downside to removing this section.

The Judge Advocate General's office made it clear that this section is rarely taken through the formal process. In other words, it is not used very often. However, the fact that it makes it a disciplinary offence means that it is sometimes applied at the command level. I think there was only one case in the last 10 years of someone being prosecuted for self-harming through the military justice system, but the fact that it is there as a disciplinary offence allows lower-level decisions that apply discipline rather than assistance to these mental health issues.

It was a big missed opportunity. The Liberals, as I mentioned, argued that it was outside the scope of Bill C-77 to remove this section of the National Defence Act. That was a very technical argument and one that is very difficult for me to accept, in that Bill C-77 already amended eight other sections of the code of conduct, so it would have been very easy for the committee to decide to proceed with this amendment.

Although the Liberals have not done so and the bill is now before us without my amendment, I still support the bill. I think there are many positive things in it. However, I have introduced a private member's bill, Bill C-426, which does the same thing. It is a very simple bill. It suggests taking paragraph 98(c) out of the National Defence Act.

The Liberals argued at committee that doing it at committee was not the right way or the right place, but they were sympathetic, so my challenge to the Liberals now is this: If the committee was not the right place to amend Bill C-77 in this way, will they join the Conservatives and the New Democrats in now supporting my bill to take this section out of the National Defence Act and remove one of the major barriers preventing those who are suffering with mental illness from getting the treatment and help they need?

With that, I will conclude my remarks, and I will be happy to take questions.

I am happy the bill is moving forward. I am happy it is going to be done before we go to another election so that we do not have a further delay on victims' rights in the military justice system, but I remain disappointed that we have missed a big opportunity to do something about the crisis of death by suicide in the Canadian Forces.

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

Madam Speaker, I want to go back to the part of the National Defence Act that the hon. member was attempting to remove at committee. I am a member of that committee and have had a great working relationship with the hon. member over the last three and a half years.

I think it is germane to note that it was not the Liberals who attempted to remove this section; in fact, it was a ruling of the chair. As we know, the chair consults with the clerk's office in terms of what is in order as we are studying a particular piece of legislation. I really hope that support for amendments to legislation with respect to mental health challenges specifically does not have to be a politicized matter.

I would further indicate that after this issue was raised by the hon. member at committee, it did catch the attention of the Minister of National Defence. The minister then wrote to the national defence committee, encouraging it to study the issue so that recommendations for a proper amendment to the appropriate piece of legislation could be made and brought forward at that time.

Would the hon. member at least not agree with me that this is what happened?

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

Madam Speaker, I have three things to say.

First of all, the minister wrote to the members of the committee 30 minutes before we were going to vote. It was clearly an attempt by the minister to influence the committee and to not allow the committee to be independent on this issue. That is the first thing I would say.

Second, once the chair ruled that the amendment was out of order, I challenged the chair. We had a recorded vote on whether we would sustain the decision of the chair to rule it out of order. Each and every one of the Liberal members voted to sustain the chair's ruling that it was out of order. Each of those members is clearly on the record as doing so. I know that the hon. member was not present that day, so he is not on that list.

That leads me to my third point. It is that these things happen, but now we have a private member's bill before the House that would allow us to do the same thing. Therefore, I call on those members to support the private member's bill and support the Conservatives and the NDP in getting this obstacle to getting mental health services that people may need out of the National Defence Act.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Madam Speaker, it is the Liberal way. They have to study something that is just common sense. It is unbelievable. It is not that studying further is not common sense, but just getting it done, just action, is common sense.

I thank my hon. colleague for bringing up two points that I feel are very important. Everybody in the House knows that I am passionate about doing everything in our power to provide those whom we trust to serve our country and community with the tools to both complete their mission and to come home and remain healthy.

My hon. colleague brought up two valid points. They were on the unreported sexual assault that is taking place or could be taking place within our military, as well as the point on death by suicide, self-harm and post-traumatic stress disorder.

We now know more about post-traumatic stress disorder, mental health injury and the mental illness that can be caused by the sights and sounds experienced by those who have served.

There is so much that we can do, that our forces can do, by building trust at the very beginning, by building and creating more resources so that our new recruits know what they are getting themselves into on all sides. I agree with my hon. colleague that the first step would be removing paragraph 98(c), and the other part is Bill C-211—

[The Assistant Deputy Speaker, Carol Hughes]

Unfortunately, I have to allow for other questions. I would ask members to keep their preambles short so that we can get in as many questions as possible.

The hon. member for Esquimalt—Saanich—Sooke.

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

Madam Speaker, I thank the member for Cariboo—Prince George for his tireless work on behalf of veterans and on the issue of PTSD.

What we are trying to do is change attitudes. I commend the senior leadership of the military for taking on the task for trying to change attitudes, but I do not commend the glacial pace at which we are working.

Again, when I talked to the families, they identified that in the cases of the individual family members they lost, making self-harm a disciplinary offence and treating self-harm as a disciplinary offence was a barrier to getting assistance.

I think this is one of the things we could easily do. However, when the minister says that we should study it again, it means that it would not get done in this Parliament. We are out of time. Therefore, we need to act more expeditiously, and that is why I am calling on all parties to support my private member's bill to get this done before the next election.

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

Madam Speaker, the member spent a great deal of his time talking about PTSD and mental health issues, and I think it is important to recognize that within the proposed legislation there are some measures bearing on these issues. I do not know if they are present to the same degree that my colleague across the way wishes to see, but what I do know is that over the last while we have had a commitment and a realization, in good part, of 200 additional medical and health care personnel to deal with the situation. Back in the 2017 budget, in fact, there was $17.5 million put aside for a centre of excellence focused on the prevention, assessment and treatment of PTSD and related mental health conditions for military members and veterans.

Would the member not agree that while the legislation is one thing, we also need to look at other things that we could be doing to address this serious illness and treat it appropriately? One of the ways of doing that would be to increase the number of health care providers, which is something we have done.

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

Madam Speaker, of course I agree that there are other things we have to do in addition to the legislation. However, one of the things that is most important in treating mental illness as an illness is changing those attitudes. When we enshrine in law that it is a serving member's fault and that they should be disciplined if they are suffering from mental health issues that lead to self-harm and even death by suicide, it is a major thing we could change at this point, which would flow into all of the other things we are doing.

The member referred to money that was set aside for additional health professionals and a centre of excellence. However, without being too harsh, I would say that the Liberals are better at saying than doing. Those things appear in budgets, but they do not actually appear on the ground. When I go to the base in my riding, I see that there are still vacancies in existing positions and that they are having trouble hiring people to deliver those services.

Of course, one of the reasons is that DND employees have the whole shemozzle of the Phoenix pay system, but I will not start into that issue as a part of this debate.