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

[Sheri Benson, NDP, Saskatoon West, SK]

Madam Speaker, I want to thank my hon. colleague for his comments, his tireless advocacy and his support for families in bringing their stories to light. He has enabled us to hear what the impact has been on families when we have something in law that does not make any sense and could do more harm than good.

I brought this up with the minister when we were discussing the bill earlier in the week, and I want to underline it, because our hon. colleague on the opposite side brought it up. It does not matter how much investment we make in services if people do not access them because there is a stigma attached. We can all agree that there is a stigma attached to mental health; it is the biggest barrier. As my hon. colleague said, regardless of whether the military has ever used this part of the military code to prosecute people, the fact that it is there sends a message to people.

I want my hon. colleague to add further comment on this. The money and the services might be there, but if there is a barrier preventing people from accessing the help, what is the point?

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

Madam Speaker, I want to thank the hon. member for Saskatoon West for her comments. She has restated the argument much better than I did originally. She hit the nail directly on the head.

Certainly, what we hear from families is that the stigma prevents access to services. It causes people to hide their problems so as not to lose the confidence of their commanders or colleagues in the military, whereas if they break an arm, they would not hide it but would get treatment. If they have a different kind of illness that is not visible, the stigma makes them hide that illness, so it becomes worse and we eventually lose the services of that member to the Canadian Armed Forces, as well as the loved ones of those families.

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

Madam Speaker, I would like to inform you that I will be sharing my time with the member for Davenport.

It is great to be in this chamber today and to hear the overwhelming support from all sides of this House on this very important piece of legislation. It is an honour to rise in the House today to share my thoughts on how the government is supporting victims of inappropriate conduct by members of the Canadian Armed Forces.

When victims display courage by coming forward with a complaint, we must ensure that they are fully supported. Anything less is unacceptable. Every victim, whether a Canadian Armed Forces member or a civilian, deserves to be treated with trust, dignity and respect. We are fully behind the chief of the defence staff and his leadership team as they take steps to root out harmful and inappropriate sexual behaviour in our military.

Since General Vance launched Operation Honour in 2015, we are seeing progress. As former Supreme Court Justice Marie Deschamps recommended in her report in 2015, we put in place a sexual misconduct response centre, which provides support to those affected by inappropriate sexual behaviour. We established the sexual misconduct response centre and extended its services to 24 hours a day, seven days a week, 365 days a year. It is accessible no matter where a service member is deployed around the world. Last fall, the Canadian Forces provost marshal re-examined 179 sexual assault cases previously deemed unfounded, and determined that 23 should be reopened to further investigation.

This past May, we introduced Bill C-77 to add the declaration of victims rights to the military's Code of Service Discipline. This piece of legislation before us today enshrines victims' rights in the military justice system. This is good news, because it shows that military justice in this country continues to evolve in the best interests of Canadians and the Canadian Armed Forces. It shows the government recognizes the harmful impact that service offences to victims have on the military and on society. It shows the government's commitment to strengthening victims' rights in the military justice system. It is our view that this legislation advances Canada's position as a global leader in supporting victims.

The amendments in this bill would strengthen and uphold victims' rights within the military justice system while ensuring that these rights mirror those in the Canadian Victims Bill of Rights. Simply put, the legislation creates and extends rights for victims in four specific areas: first, the right to information about how the military justice system works; second, the right to protection of their security and privacy; third, the right to participation by expanding how victim impact statements can be presented at courts martial; and fourth, the right to restitution for damages or losses. We have a responsibility to make sure victims are treated with dignity and respect. We are taking this responsibility seriously. We owe it to victims and their families.

In his report last November, the Auditor General included a report on efforts to stop inappropriate sexual conduct in the Canadian Armed Forces. It came with a number of recommendations that will help lay the ground for the next steps of Operation Honour. Canadians can have complete confidence in both the Department of National Defence and the Canadian Armed Forces to apply these recommendations. The chief of the defence staff has made it clear that serious administrative action will be taken against Canadian Armed Forces members who are found guilty of sexual misconduct. He has zero tolerance for Canadian Armed Forces leaders who fail to act when confronted with inappropriate behaviour within the ranks.

When my colleague, the Minister of National Defence, reviewed the Auditor General's report, he had a clear message for Canadian Armed Forces members and victims. He said that this was about making sure we are doing the right thing for victims; we know we need to do better, and we will.

This is why we are moving Bill C-77 through this House as efficiently and effectively as possible. It is why we expanded the sexual misconduct response centre, so victims can access support in Canada and abroad 24 hours a day, seven days a week, 365 days a year. It is why the SMRC is looking at ways to enhance service delivery to better meet the needs of all Canadian Armed Forces members, and it is why the sexual assault review program was established to conduct reviews of all sexual assault investigations deemed unfounded by the military police.

Our government wants the Canadian Armed Forces recognized as a respected leader on this issue, both inside the Canadian government and by militaries around the world. At the same time, we know this is not just a military issue. The Canadian Armed Forces is not alone in dealing with sexual misconduct. It is deeply rooted in society. Sexual misconduct is wrong wherever it happens, but when it happens in the military, it threatens the welfare of all members of the Canadian Armed Forces community, military and civilian alike.

Our people are at the centre of everything we do. The way we support and treat them is directly related to the military's operational effectiveness. It is also directly related to our values as Canadians. The Canadian Armed Forces has put down a good, solid foundation on which to build. Now it is shifting toward sustained cultural change. Later this year, the Canadian Armed Forces is expected to release its fourth report to update Canadians on all progress made to date on Operation Honour, followed by a cultural change strategy.

Along with Bill C-77 and through the declaration of victims rights, we are strengthening the rights and protections of victims who come forward when they have been wronged. In the passing of this legislation, we are reinforcing Canada's position as a global leader in maintaining a fair and effective military justice system, one that continuously evolves in harmony with our civilian laws. In passing this legislation, we are demonstrating clearly and without question that anyone who is victimized by inappropriate behaviour within the Canadian Armed Forces will be supported fully in the military justice system through these enhanced victims' rights.

For these reasons, I appeal to all members of this House to support this bill.

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

Madam Speaker, we had a good, vigorous debate and study of Bill C-77, and a number of shortfalls were identified by some of the witnesses: retired Lieutenant-Colonel Perron in particular, as well as the Barreau du Québec.

One thing that came up that we did not get positive feedback from JAG on was the issue of changing the burden of proof from beyond a reasonable doubt to the balance of probabilities. The argument from National Defence and the Canadian Armed Forces' legal advisers is that we do not need to have such regimented tests within a summary hearing process, unlike in the old-fashioned court martial and summary conviction process.

I would ask the member if he feels we got to the bottom of it to protect those who are wrongfully accused in view of the potential punishments that will be laid down, such as confinement to quarters and being sent to the brig for a period of time, as well as a reduction in rank and pay.

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

Madam Speaker, I know the member for Selkirk—Interlake—Eastman would not overly criticize this bill, considering that earlier he said it is a complete replica of the Conservative bill that was introduced by the previous government. I am sure any criticism he might make about it now would equally apply to the former bill.

His question digs into the nuances of what happened in committee, the various testimonies we heard and the results we came out with at the end of the day as a result of that deliberative process. When we had the opportunity to do that and when we heard from the various witnesses, that informed our opinions on how to proceed.

However, what we end up with here is a bill that would put our military personnel within the same form of evolution in terms of their rights as people get outside of the military. That is the primary objective here. That is what has come forward through this piece of legislation.

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

Madam Speaker, I would like to pick up on my colleague's last point and cite an example.

Under civilian law, if someone does not show up for work, there is a marginal consequence for that, whereas under military law, a service member could end up going to court and receiving a criminal record. If a criminal record is received, that has a profound negative impact once that service member leaves the military on things such as taking a trip to the U.S.A. or applying for a job. Bringing these things together, military law and civilian law, and making them closer in resemblance would be a good thing for the service member.

Could my colleague comment on that?

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

Madam Speaker, the bill is really about that. I talked about the evolution of putting it more in line with the similar supports and processes which people outside of the military go through. This is about that.

We find that within the military, just like outside the military, not every case should be treated the exact same way, given the different significance of what was inappropriately done. This legislation would give the flexibility to allow the different processes to take place so people would not necessarily be subject to the exact rule depending on the particular violation.

[Julie Dzerowicz, Liberal, Davenport, ON]

Madam Speaker, on behalf of the residents of Davenport, it is an absolute honour to have this opportunity to rise today and engage in the third reading of Bill C-77, an act to amend the National Defence Act and to make related and consequential amendments to other acts.

This proposed bill amends the provisions of the National Defence Act with respect to the governance of the military justice system and it adds a new section on the declaration of victim rights to the Code of Service Discipline that specify the victims of service offences have a right to information, protection, participation and restitution in respect to service offences. It adds or amends several definitions, including victim and military justice system participant rights and specifies who may act on the victim's behalf for the purposes of that division.

I am so pleased to speak about how Bill C-77 is part of a broader effort our government is making to increase diversity and inclusiveness within the Canadian Armed Forces. Canada's unique, diverse and multicultural population is one of its greatest strengths and we are determined to see that strength reflected in Canada's military.

We know that embracing diversity and drawing on all the strengths of Canada's population will enhance military operational effectiveness. That is why Canada's defence policy “Strong, Secure, Engaged” makes diversity and inclusion a core institutional value for the Canadian Armed Forces. Canadians know diversity is our strength, and we will always champion that.

A diverse and inclusive Canadian Armed Forces starts with a respectful and open work environment for all. “Strong, Secure, Engaged” has identified several initiatives that will help our military continue to cultivate a culture of respect, and it is delivering on all of them.

We are ensuring that the Canadian Armed Forces has the ability to respond effectively and appropriately to anyone who discriminates against fellow service members. Through Bill C-77, we are calling for increased sentences and sanctions for service offences and infractions when there is evidence they are motivated by bias, hate or prejudice based on gender expression or identity. This focus on deterring crimes based in hate for those whose gender expression or identity differ from our own is an important step in the significant progress the forces has made in changing its culture to one of greater inclusivity and diversity. These changes will help the defence team ensure it remains an institution based in honour, integrity and honesty.

However, the changes proposed in Bill C-77 are not the only steps the forces are taking. Through Operation Honour, the Canadian Armed Forces continues its vital work to eliminate harmful and inappropriate sexual behaviour. Above all else, it is putting its focus on support for people affected by inappropriate sexual behaviour. That includes expanding the role and mandate of the sexual misconduct response centre, or SMRC, to make it the authoritative voice on victim support and advocacy.

As the Sexual Misconduct Response Centre assumes this increased responsibility, it has already established itself as a leader in this field. This past December, the SMRC hosted the first-ever Five Eyes forum on preventing and addressing sexual misconduct, allowing experts from Canada, the U.S., the U.K., Australia and New Zealand to share with, and learn from, one another. These efforts will also help National Defence be an even greater leader in achieving a gender balanced military.

We should all be proud that Canada is already a world leader in this area. As of this January of this year, there are 15,116 women in the Canadian Armed Forces. That is 15.7% of our military, and significantly more than the NATO average of 11%.

I was honoured to recently visit the Canadian Armed Forces mission in Mali. It is participating in MINUSMA, which is the UN Multidimensional Integrated Stabilization Mission. Right now 14% of all those deployed there are women. That number compares to about 4% for all other UN missions.

I know we have a long way to go, but we have already made great progress. We should celebrate the progress we have managed to make.

Through “Strong, Secure, Engaged”, we are increasing the percentage of women in the military to 25% by 2026. That is our target. The Canadian Armed Forces has undertaken a number of activities to meet this goal. I will go through them in a minute.

I want to add that right now the national defence committee is looking at how we can increase diversity in the Canadian Armed Forces. We are looking to put forward a number of other policy ideas and immediate action steps on how we can increase the number of not only women, but those from visible minorities, the LGBTQ community and the indigenous community, among others, in the Canadian Armed Forces.

I will go back to the additional activities that the Canadian Armed Forces is undertaking to meet the goal of 25% of 2026.

First, it has established a team of representatives from across the military, the federal government and the private sector to examine recruiting strategies for women joining the defence team. We have gone outside of government to get the best ideas so we can achieve our goal of 25% by 2026.

Second, the Canadian Armed Forces has introduced policies and practices that promote a healthy family and work-life balance. I was blessed to join the Canadians Navy on the HMCS Charlottetown during the summer. When I talked to women there, I heard that more and more women were joining because the navy had done a wonderful job of improving the work-life balance, making it easier for people to have families and to support their families while they were pursuing careers in the Canadians Navy.

However, diversity is more than gender. The Canadian Armed Forces also has specific initiatives under way to increase its diversity across a broad spectrum of ethnicity, religion, age, experience, language and more.

The Canadian Armed Forces continues to modernize, streamline and standardize recruiting to ensure that it is truly welcoming to all applicants. It has recruiters who are multilingual and from a wide range of ethnic backgrounds. These recruiters receive extensive training designed to help them understand and be attuned to cultural norms that may differ from their own background and beliefs. This has helped improve communication with potential recruits, which in turn has alleviated many of the misconceptions that visible minority applicants sometimes have regarding the military.

The Canadian Armed Forces has also made important changes to the way it welcomes people of different backgrounds into the military. While the military maintains strict dress regulations for professional and operational purposes, it refuses to allow those regulations to be a barrier to someone who wishes to join.

As important as all these initiatives are, we also have to recognize the impact of past actions.

In November 2017, our Prime Minister rose in the House to issue a formal apology to Canadian members of the LGBTQ2 community for historic injustices inflicted upon them in the country. That included many members of the Canadian Armed Forces who were not just discriminated against, but interrogated and persecuted for nearly forty years during what has become known infamously as “the purge”.

We can never undo the damage of this persecution, but we can recognize and remember the pain it caused. We apologized in order for us to move on and make changes.

We are doing just that with the Canada pride citation. Members of the Canadian Armed Forces who were directly impacted by anti-LGBTQ2 policies and practices can wear the Canada pride citation on their uniforms. The citation stands as an acknowledgement and reminder of past injustices and as an affirmation of our commitment to ensuring that this dark chapter in our history never happens again.

I note that over a year ago, the military launched the positive spaces initiative to promote a safe and inclusive work environment for all employees regarding sexual orientation, gender identity and gender expression. I am happy to answer questions on that.

I am very proud of the actions we have taken to date and I ask everyone in the House to support Bill C-77.

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

Madam Speaker, the member talked about some of the challenges that occur in the Canadian Armed Forces, and that Bill C-77 incorporates the Gladue decision from the Supreme Court, ensuring that indigenous members of the Canadian Armed Forces will have a chance, at the time of sentencing, to make sure that any cultural sensitivities are taken into consideration.

We just witnessed an unfortunate event over the last few weeks, where the former associate minister of defence who is also the former attorney general, a very proud indigenous leader, was forced to resign. I would like to know, from the member, why the former associate minister of defence left her office.

[Julie Dzerowicz, Liberal, Davenport, ON]

Madam Speaker, I will focus my comments on Bill C-77.

The member talked about the indigenous population. As we mentioned, we are actually trying to increase the number of indigenous peoples within our Canadian Armed Forces. Two key things that we are really focused on in Bill C-77 are including indigenous sentencing provisions, which require military tribunals to consider the circumstances of indigenous offenders at sentencing, as is the case in the civilian justice system, and ensuring that indigenous peoples are given the same rights and respect in the military as in civilian courts.

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

Madam Speaker, I thank my colleague from Toronto—Danforth for her speech.

I am not an expert in military justice. However, it has come to my attention that, in the military, acts of self-harm are considered an offence. This makes it punishable behaviour.

I would like to know what my colleague thinks about the fact that the new legislation does not address this problem, even though it is a known issue. Self-harm is still considered an offence.

Obviously, if an individual is struggling with this problem, it will be hard for them to seek help because they could end up being reprimanded under the Code of Service Discipline.

[Julie Dzerowicz, Liberal, Davenport, ON]

Madam Speaker, that is an excellent question. I am the member for Davenport, although many people do confuse me with the hon. member for Toronto—Danforth, and that is okay. However, I did want to correct it for the record.

I would say that self-harm is absolutely something that was brought to the attention of the committee. It was mentioned and we questioned whether there were some adjustments that we could make to Bill C-77 to address all of the concerns around self-harm.

The context of the bill did not allow us to address that particular issue, but we recognize that we need to continue to adapt our approach to care and to those suffering from mental health issues. That is why our minister invited the national defence committee to study the issue of suicide and self-harm within the Canadian Armed Forces, with a view to providing our government with recommendations related to these challenges, specifically as it relates to self-harm.

We have acknowledged that this is an issue. There was an impassioned plea by a mother who was affected by a Canadian Armed Forces member impacted by this particular issue. We made a commitment to look at it and we will continue to take this very seriously moving forward.

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

Madam Speaker, there is a very important conversation that we need to have today regarding the amendments to Bill C-77, which seeks to amend the National Defence Act.

The most important thing we have to talk about is why we have a National Defence Act and why people in uniform have a separate judicial system than those in the civilian world. The reason for that is very important. It is that people in uniform are the only people who are entrusted with the right to take a life in aggression, not in self-defence. They are entrusted with the responsibility and sacred reliability of taking a life.

Therefore, as elected officials in a liberal democracy, we must ensure that would never happen without the authority of the citizens, who have entrusted the people in uniform with that responsibility. That is why we have a National Defence Act that separates them from regular citizens, because they have a responsibility and authority that the average citizen does not have.

When we talk about amending the National Defence Act, we have to understand why we have it in the first place. A military is foreign policy by other means. Therefore, when, where, how and for what purpose would we use people in uniform to fight acts of aggression and take lives on behalf of the country? Our alliance in NATO and the Washington treaty, signed on April 4, 1949, after the Second World War, clearly outlines exactly why. It says:

The Parties to this Treaty reaffirm their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments.

They are determined to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law.

Therefore, why do we have a military? We have a military to ensure we can safeguard the freedom, common heritage and civilization of our peoples, founded on the principles of democracy, individual liberty and the rule of law. That is incredibly important to remember, particularly in light of the conversations that have gone on over the last couple of months and the testimony of the former attorney general yesterday.

Our foundation of democracy is based on the separation of the executive branch, the legislative branch, the judicial branch and the military under the National Defence Act. Those pillars are the checks and balances to ensure that individuals are not in a position to undermine the value of these institutions.

Individuals take responsibilities in each of those institutions, just like I did when I swore an oath to serve in the Canadian Forces. The oath I swore was not to a person but to the position of Queen and country. I swore an oath to serve and defend the values of the nation for which it stands. The Prime Minister, members of Parliament and cabinet ministers are also not individuals but people who have also been entrusted with the roles and responsibilities associated with their positions. If and when we forget that these are positions, not individuals, and that the role is bigger than the individuals themselves, the very nature of our democracy is under threat, because, as we can see, those individuals think they have the authority to wield the system in their favour.

We heard from the former attorney general that the Prime Minister had an unrelenting and coordinated attempt at influencing her decision as the Attorney General, the top prosecutor in the land, to do something that was actually illegal so that he could achieve political gain.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, I rise on a point of order. We are debating Bill C-77 today. The previous Speaker had just cautioned members to try to remain relevant to the bill. I can somewhat sense that the member is trying to be relevant but is skirting around it, and now she is getting to a point of wanting to reflect on something that took place at committee yesterday.

There has been an emergency debate requested and approved for tonight. Maybe the member could save that aspect until tonight and for now concentrate on Bill C-77.

[The Assistant Deputy Speaker, Carol Hughes]

I want to remind the hon. parliamentary secretary that there is some flexibility, as he well knows, during the debates. However, I also want to remind those who are making speeches that their speech has to be relevant to the bill that is being debated at the moment. Therefore, I am sure that the member will come back to the bill itself and will ensure that her speech is surrounding the bill.

The hon. member for Aurora—Oak Ridges—Richmond Hill.