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

[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.

[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?