Bill C-66

Military Justice System Modernization Act

An Act to amend the National Defence Act and other Acts

This enactment amends provisions of the National Defence Act that relate to the military justice system in response to the Report of the Third Independent Review Authority to the Minister of National Defence and the Report of the Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces.
In response to those reports, the enactment amends that Act to, among other things,
(a) modify the process for appointing the Canadian Forces Provost Marshal, the Director of Military Prosecutions and the Director of Defence Counsel Services with a view to enhancing their independence;
(b) affirm the Judge Advocate General’s respect for the independence of authorities in the military justice system in the exercise of the Judge Advocate General’s superintendence of the administration of military justice;
(c) remove the court martial’s jurisdiction to try a person in relation to an offence under the Criminal Code that is alleged to have been committed in Canada and that is of a sexual nature or committed for a sexual purpose;
(d) remove the Canadian Armed Forces’ authority to investigate an offence under the Criminal Code that is alleged to have been committed in Canada and that is of a sexual nature or committed for a sexual purpose;
(e) expand the class of persons who are eligible to be appointed as a military judge;
(f) expand the class of persons who may make an interference complaint and provide that a member of the military police or person performing policing duties or functions under the Canadian Forces Provost Marshal’s supervision must make such a complaint in certain circumstances; and
(g) change the title of the Canadian Forces Provost Marshal to the Provost Marshal General.
In addition, the enactment amends the National Defence Act to remove military judges from the summary hearing system and to provide that, in the context of a service offence, an individual acting on behalf of a victim may request that a victim’s liaison officer be appointed to assist them.
It further amends that Act to harmonize the sex offender information and publication ban provisions with the amendments made to the Criminal Code in An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act .
Finally, it amends the Criminal Code to, among other things, provide superior courts of criminal jurisdiction with the jurisdiction to hear applications for an exemption in respect of orders to comply with the Sex Offender Information Registration Act made under the National Defence Act and applications to vary the duration of such orders.

Military Justice System Modernization Act

[Bryan May, Liberal, Parliamentary Secretary to the Minister of Small Business and to the Minister responsible for the Federal Economic Development Agency for Southern Ontario]

Madam Speaker, I am not going to speak to specific cases, because I do not have all that information in front of me. However, I will say once again that we have to work closely with the provinces. We have to encourage the provinces to make sure they are investing effectively.

This recommendation to move recommendation 5 from the Arbour report was a pillar recommendation. This was not a soft recommendation. This absolutely needs to be done, and we have moved in that direction. We know that this is what the stakeholders were asking us to do. We know that there are going to be challenges as we move forward with respect to resourcing and making sure that the provinces are properly equipped to manage. However, again, this is a provincial-level issue and a provincial-level question.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Madam Speaker, I thank the member for his intervention in the House. I also sit with him on the veterans affairs committee, and he was part of the significant study we did on women veterans. What was horrible about that study was watching woman after woman come in and talk about things that had happened to them and, by the way, whether they were also a victim and now a survivor of sexual interference.

One thing that is very clear to me in any marginalized group is that there is nothing about us without us. That is a common thing we hear all the time. I want the bill passed very quickly because I want to protect these women. I want to have their voices heard. However, of course, my concern is that, if they are not a key part of the consultation process, then that would not be reflected.

Could this member talk about whether this is going to happen and whether the minister will be held to account to make sure it does?

[Bryan May, Liberal, Cambridge, ON]

Madam Speaker, I will try to keep it brief, but there is a lot in the question that deserves an answer. I too want to see the bill go to committee. I was the parliamentary secretary to the Minister of National Defence when the meat and potatoes of the study from Arbour came through, and the work we have done on this has been critical.

I agree wholeheartedly with the member opposite, and I think we will work together. I will point out that this is the first piece of legislation in 18 months that I hope and believe we will see full party support for.

[Lisa Hepfner, Liberal, Parliamentary Secretary to the Minister for Women and Gender Equality and Youth]

Madam Speaker, I am thankful for the opportunity to explain why I heartily support Bill C-66, the military justice system modernization act. The legislation now before us aims to advance culture change within the Canadian Armed Forces, the CAF, and the Department of National Defence, or DND. In particular, the legislation aims to foster a culture free from sexual misconduct, sexual abuse and misogyny, all of which are forms of gender-based violence.

Bill C-66 envisions a safe work environment for all CAF and DND employees, with supports for victims and survivors of sexual misconduct, including ready access to mechanisms of justice that are currently available to all other Canadians. The vision of Bill C-66 is aligned with “It's Time: Canada's Strategy to Prevent and Address Gender-Based Violence” and the “National Action Plan to End Gender-Based Violence”, which guide the Government of Canada in preventing and addressing gender-based violence.

Through my work as parliamentary secretary to the Minister for Women and Gender Equality and Youth, I have travelled the country and heard from survivors about the work that still needs to be done to ensure women veterans are heard and are represented and visible in this strategy. The whole of government must address the issue of gender-based violence, not only through the national action plan to end gender-based violence but through all departments. This is why Bill C-66 is so important. All federal departments must be part of the strategy.

In recent years, Canadians have come to understand the gravity of sexual misconduct and the effect it has on victims, survivors and their families, and on our wider society. The #MeToo movement inspired thousands of victims and survivors to tell their stories, often for the first time, and we started to see some real change.

Women were not allowed to serve in combat roles in the Canadian military until a Human Rights Tribunal decision in 1989. That was the year Heather R. Erxleben became the first woman to join an infantry unit. I have learned that at the time there was little thought or effort to accommodate the needs of women who joined the armed forces, like properly fitted uniforms and safety equipment, and an appropriate military culture.

Recently, as part of my role on the Standing Committee for Veterans Affairs, I participated in a study that led to the report “Invisible No More. The Experiences of Canadian Women Veterans”. I am going to share some of the things we heard at that committee, but I want to start with a warning, because these are stories of sexual violence. They are difficult to hear, and I imagine some of the people watching will want a moment to turn away. They might be triggered by what I am about to share.

One witness told us:

I was drugged, kidnapped and gang-raped while attending mandatory training. The last thing I remember is dozing off in class after our lunch break in the cafeteria, and waking in complete fear in an unknown location, with motel staff waking me. I was completely naked, with no identification, covered in blood and bruises, and I couldn't walk. While the military government covered up a crime, the criminals climbed the ranks.

Another witness said:

I have seen it over and over again. I have seen, on basic training, warrant officers sleeping with cadets and using it as a tool to get sex—convincing a cadet that, if they do this, they'll pass basic training....

Sexual abuse was used as a way of almost controlling...women. I spent a year, at one time, in my career as a commander hiding from senior officers. I mean that literally.

Another veteran said:

How do I tell you what it's like to be in the middle of the ocean, with no land in sight for days, or in the Gulf of Oman, or off the coast of Panama, or even 12 nautical miles off the coast of Vancouver Island, and be told that if there was an “accident”, no one would hear my screams, or sailing with people who would grab my body, manipulate me, brainwash me and use me as a sex toy?

The final quote I will share is this:

From the beginning and throughout my career of 26 years, I was subjected to misconduct by men. In the beginning, it was to make me give up, but later on it was to appropriate my body—from verbal harassment to touching to forced kissing by superiors. It was also the invasion of my private life as a way to force me to accept the unacceptable. However, I consider myself lucky: I am not one of those who was raped.

Canadians are now more aware than ever that acts of sexual misconduct have occurred far too often and been tolerated far too readily, and that the impacts are deep, powerful and persistent. Bill C-66 is a step toward ensuring the goal that all CAF members are respected and safe while they serve. Canadians have also heard about policies and practices, formal and informal, that help create a culture of secrecy and tolerance and make perpetrators feel like they can get away with their actions without any consequences.

By eliminating some of these policies and practices, Bill C-66 would put an end to this sense of impunity and help CAF and DND establish and maintain more trauma-informed, progressive, respectful and positive organizational cultures.

The effective elements of Bill C-66 are rooted in studies led by two of Canada's former Supreme Court justices. The Hon. Morris Fish completed the third independent review of the National Defence Act three years ago, and the Hon. Louise Arbour published the independent external comprehensive review of DND and CAF two years ago. Both of these landmark documents come with recommendations for improving organizational culture, particularly when it comes to sexual misconduct.

One of the most effective recommendations can only be adopted through legislative change, and it is recommendation 5 from the hon. Louise Arbour. It calls for a complete overhaul of the way that sexual offences listed in the Criminal Code and involving CAF personnel are investigated and prosecuted. For sexual offences committed in Canada, Bill C-66 would assign exclusive jurisdiction to civilian authorities. This change would put a much-needed distance between the chain of command and the team of investigators and prosecutors. For victims and survivors, the current lack of distance makes it very difficult for them to pursue and achieve justice.

Bill C-66 would also implement several recommendations made by former Supreme Court justice Fish, making it easier to hold offenders to account. Furthermore, Bill C-66 proposes a series of amendments to other legislation to ensure that the military justice system remains constitutional and aligns with the Criminal Code and the civilian criminal justice system. Bill C-66 is just one important element of the government's larger strategy to advance culture change within the CAF and DND.

A few months ago, the third report of the external monitor documented recent progress made toward implementing Justice Arbour's 48 recommendations, including the following: transforming the complaint system, including grievances; making improvements to enrolment and recruitment processes; creating the Canadian military college review board; doing a comprehensive review of basic training in the CAF and creating a framework to enhance education related to conduct and culture; making a 10-year plan to identify promising candidates among women and other equity-deserving groups; and creating a stronger promotion process for senior leaders to better assess character, talent and competence. Each of these accomplishments is important. The external monitor's report notes that the CAF's commitment to change seems genuine.

As my hon. colleagues recognize, systemic change often lags behind social change, and this description certainly seems apt when it comes to sexual misconduct within CAF and DND. The justice report suggests that, for a long time, DND and CAF have failed to properly investigate allegations, prosecute legitimate offences or hold perpetrators accountable. Abhorrent behaviour has been tolerated for far too long, and the confidence and trust that Canadians once had in the CAF and DND has diminished as a result.

Canadians are no longer willing to look the other way. They expect organizations to prevent and address sexual misconduct and misogyny and for elected representatives to do their part. The legislation before us would help foster culture change and ensure a more trauma-informed and safer work environment for our CAF and DND members. It would ensure accountability and support victims and survivors by providing them with the mechanisms they need to pursue justice and hold offenders to account.

I encourage all of my hon. colleagues to join me and support Bill C-66.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Madam Speaker, yes, the Arbour report did clearly recommend this legislative change, but so did the Deschamps report years earlier.

This was a legislative change that was recommended almost 10 years ago and accepted by the previous government, but it sat on the current government's desk without movement for years. Here we are now, nine years into the Liberal government, in the twilight of this Parliament, trying to implement a change that should have been at least initiated close to 10 years ago.

Does the member know why the government, for which she is a spokesperson, waited so long for this legislative change?

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Madam Speaker, I appreciate how the member opposite noted that the previous federal government did not do anything on this. In my speech, I outlined several improvements that have already been made to help improve the culture at CAF and DND.

This is not the first step we have taken. This is not the only thing we have done. It has taken some time. We heard from Louise Arbour that it was going to take time to implement some of these recommendations, but we are working on it. We are moving. We are action-focused.

[Luc Desilets, Bloc, Rivière-des-Mille-Îles, QC]

Madam Speaker, I am very much in favour of giving sexual misconduct victims in the military the possibility of being heard in our civilian justice system. However, I hear that some victims are asking to have the option of choosing between the civilian justice system and the military justice system. I am a bit surprised, to be honest.

What does my colleague think of the possibility of letting the victims choose?

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Madam Speaker, I very much appreciate my colleague from the Bloc Québécois, who works with me at the Standing Committee on Veterans Affairs.

Yes, I think that it is very important for victims to have choices. I also find this situation to be surprising. I am not sure, I am not a legal expert, but I think that we should have a system for everyone and that everyone should use it.

[Lori Idlout, NDP, Nunavut, NU]

Uqaqtittiji, the more I learn about this bill, the more I see how important survivors of violence in the military are.

I am sure that it is already very traumatizing to have to serve in the military, especially in today's society, globally, with all the violence that we are seeing. In particular, with survivors of abuse within the system itself, it makes me quite concerned that there are still a lot of questions that need to be answered. For example, we have been told that law enforcement in different provinces might not be equipped to deal with investigations or those kinds of things.

I wonder if the member agrees that once this gets to committee, expanding the committee to study this bill specifically with a focus on survivors will be so important that that extension is going to be necessary.

[Lisa Hepfner, Liberal, Hamilton Mountain, ON]

Madam Speaker, that is a very smart question. Absolutely, the focus should be getting this study to committee as soon as possible so that it can become legislation as soon as possible.

I am a little concerned about any delays that may happen. I do not want to see any overextension. I want to see a committee look at this study, make any improvements that are possible and necessary, and get it passed in this House of Commons as soon as possible.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Madam Speaker, it is always a pleasure to speak in the House.

I am going to split my time with the member for Hastings—Lennox and Addington.

I support Bill C-66. I support the principle of the bill. This is a legislative change that is needed to implement a recommendation that was made to the previous government in March 2015, which was only a few months before the House rose in 2015. The present government was elected in the election that followed. This government came into office with the Deschamps report freshly in hand, and did absolutely nothing to make this legislative change happen until this year. Last March, six months ago, the Liberals tabled the bill before us, and here we are this week, finally attempting to make the legislative change needed to implement this important recommendation.

The approach on this legislative change for moving the investigation and prosecution of sexual misconduct from military justice to civilian justice is exactly the same approach as everything else that this government does when it comes to the Canadian Armed Forces. Just like everything else, we see delay in the implementation.

We have, right now, ships resting out at sea. We also have fighter jets that have still not been delivered, which is another thing that, nine years ago, the Liberals could have made a decision on. We would have the fighter jets by now, but after years and years of delay, we do not have them.

We are lucky to have one submarine in the water for maybe a few dozen days of the year. The submarines we have were cast-offs from the British navy from decades ago. This government has been in power for nine years and has done nothing to procure new submarines. Yes, the government has the word “submarines” in its defence policy update, but that is not the same as actually taking concrete actions to procure and build submarines, and have submarines delivered. We also had testimony at the defence committee about the incredibly small number of tanks that are available, even for training, never mind deployment.

On offshore patrol aircraft, the government recently, finally, signed a contract to replace the 40-year-old aircraft that are very close to the end of their operational lives. Also, we do not possess air defence systems. The previous minister of defence did announce, and accepted extraordinary credit for promising, an air defence system to be sent to Ukraine almost two years ago now. It was actually announced to a television audience that it was en route to Ukraine. However, we subsequently learned that not only was it not en route to Ukraine, but there was not even a contract signed to procure it. In fact, it has not even been produced. This is, again, the culture of delay and neglect of this government.

We hear at defence committee that information technology lacking. As well, base housing is in deplorable condition with houses falling apart and a 7,000-unit backlog for people wanting to access base housing. The barracks are in horrific, unsanitary conditions. Health care is also lacking for military families.

New transport and refuelling aircraft are beginning to be procured without a hangar to place them or even a commitment for where they will be based. Howitzers and artillery pieces are entirely lacking, as well as shells. This government let a production line mothball in the threat environment that was emerging, and now Canada and its allies desperately need artillery shells. We do not have the production. The Liberals have, for a year and a half, been dithering without firm contracts to industry or being able to send a firm enough signal to industry for industry to make the investments necessary to get our production lines up and running for artillery shells, and 2,500 a month is nothing. It is less than the Ukrainian army would fire before lunchtime on a given day, if they had the equipment ready.

That is the nature of contemporary threats that we have. Artillery matters. If the present conflicts in the world have taught us anything, it is that these equipment pieces and their ammunition supplies are critical.

With respect to training, 10,000 members of the Canadian Armed Forces do not have adequate training to be deployed. These men and women want to be trained. They want to be up to deployable levels. They want to do missions. Ten thousand members are under-trained and there are 16,000 vacancies. Even the defence committee chair, earlier in this debate, talked about the inability of the Canadian Armed Forces to adequately take in people. Thousands of people are applying to join the forces, and it does not have the capacity to take people in. There are 16,000 vacant positions in the Canadian Armed Forces.

This bill is addressing the well-known and well-documented problem with sexual misconduct in the military, which is a factor in recruitment and retention and certainly a factor in morale. I travelled this past summer to Latvia with the defence committee, where I met some of our troops who are deployed on a critically important mission. These people are the best. I met a 19-year-old private who has more responsibility than I can imagine any young person being given. This very young man was responsible for training and for helping allied soldiers improve and get up to the best of their ability to execute their roles in Latvia. He is a 19-year-old man from northern British Columbia. I met a young lieutenant. She was a platoon commander there. Again, she was a very young woman with extraordinary responsibility for the defence of allied territory. These people are the best and they deserve protection. They deserve access to justice when sexual misconduct happens.

We have talked a lot about culture and culture change in the military. Part of the culture change that needs to happen is overcoming the culture of secrecy, the culture of cover-up. That culture has permeated to the very top levels. We saw the former minister of defence covering up the sexual misconduct of the former chief of the defence staff. We have seen this type of behaviour at the highest levels. We have heard testimony at the defence committee from victims of sexual assault who say that they cannot access justice; not just because of the issue around the lack of access to civilian systems, which this bill would ultimately change, but the inability to get information that they need to file a complaint. The reflexive secrecy around even members of the Canadian Armed Forces accessing their own information is a big part of the problem, and this bill would not fix that, so there is a long way to go in ensuring justice for members of the Canadian Armed Force who are victims of sexual misconduct.

As has been pointed out in this debate as well, it is not like civilian access to justice for sexual assault victims is assured, and far from it. We have seen under the current government an erosion of effective law enforcement and justice for victims. We see crime levels that we have not seen in decades. We have seen an acceleration of crime. We have seen a lack of urgency in appointing judges so that assault victims can access justice and this bill would not change that. Yes, this bill is important. Yes, it should go to committee. However, it should not skip any of the legislative steps.

We need a robust committee study on this. We need to make sure we get it right, that all the victims are heard from and the details of this bill are correct.

[Bill Blair, Liberal, Minister of National Defence]

Madam Speaker, I appreciate the member opposite, in his speech, acknowledging the importance of the bill and his indication that he intends to support it. We wholeheartedly agree. We think this bill is important. Let us get it to committee. Let us get on with the work that needs to be done.

I heard a long litigation of all his previous grievances with respect to the government, but he indicated his personal support for members of the military. How would he reconcile that with the fact that, when a vote came before the House to provide money to give members of the Canadian Armed Forces a pay raise, he voted against it? Deeds speak, and your words are betrayed by your actions. How would you reconcile that?

[The Assistant Deputy Speaker, Carol Hughes]

I want to remind the hon. minister that he needs to address questions and comments through the Chair and not directly to the member.

The hon. member for Calgary Rocky Ridge.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Madam Speaker, I voted against confidence in the government. When the estimates were presented, Conservatives voted every chance we had to bring down the government.

The estimates he speaks of, which we voted against, contained a cut to the military budget. I will not take any lessons from him on who supports the military. The government has failed the military every step of the way and continues to do so, notwithstanding this bill.

[Simon-Pierre Savard-Tremblay, Bloc, Saint-Hyacinthe—Bagot, QC]

Madam Speaker, my colleague rambled a bit at times, but he kept coming back to the subject at hand, which is Bill C-66. That is better than nothing.

I would like to draw his attention to one aspect. I understand that the Conservatives are prepared to support the bill so that it can at least go to committee. That is more or less our position as well. We will take a closer look and see how we can work together to improve it.

In the current version of the act, subsection 18.5(4) states that, “[t]he Provost Marshal shall ensure that instructions and guidelines...are available to the public.” Apparently, that is no longer included in this bill.

Does my colleague agree that this opens the door to potential abuses?