Bill C-11

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 and provide for exceptions;
(d) [ Deleted ]
(d.1) provide for the development of a plan for the establishment of an office of the inspectorgeneral for sexual misconduct in the Canadian Forces;
(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 or an accused 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.

The House proceeded to the consideration of Bill C‑11, An Act to amend the National Defence Act and other Acts, as reported (with amendments) from the committee.

Speaker's Ruling

[The Assistant Deputy Speaker, John Nater]

There are 15 motions in amendment standing on the Notice Paper for the report stage of Bill C‑11.

Motion No. 15 will not be selected by the Chair as it could have been presented in committee.

All remaining motions have been examined, and the Chair is satisfied that they meet the guidelines expressed in the note to Standing Order 76.1(5) regarding selection of motions in amendment at the report stage.

Motions Nos. 1 to 14 will be grouped for debate and voted upon according to the voting pattern available at the table.

I will now put Motions Nos. 1 to 14 to the House.

Motions in Amendment

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

moved:

Motion No. 1

That Bill C-11 be amended by deleting the short title.

Motion No. 2

That Bill C-11 be amended by deleting Clause 7.

[Maninder Sidhu, Liberal, Brampton East, ON]

moved:

That Bill C-11, in Clause 7, be amended by

(a) replacing lines 7 to 12 on page 3 with the following:

7 Section 70 of the Act is amended by striking

(b) deleting lines 1 to 8 on page 5.

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

moved:

That Bill C-11 be amended by deleting Clause 8.

[Maninder Sidhu, Liberal, Brampton East, ON]

moved:

Motion No. 5

That Bill C-11, in Clause 8, be amended by replacing line 11 on page 5 to line 34 on page 7 with the following:

70.1 Despite any other provision of this Act and any other law, an officer or non-commissioned member does not have authority to investigate, for the purposes of the laying of a charge under paragraph 130(1)(a) or an information under the Criminal Code, in relation to an offence referred to in any of paragraphs 70(d) to (h) that was, or is alleged to have been, committed in Canada.

70.2 (1) Nothing in section 70.1 prevents an officer or non-commissioned member from exercising their powers or performing their duties and functions, before the arrival of the civilian authority having jurisdiction in the matter, to the extent necessary to prevent the commission, continuation or repetition of an offence referred to in any of paragraphs 70(d) to (h) that, as the case may be, is being, was, or is alleged to have been committed in Canada, including

(a) making an arrest in relation to the offence in accordance with Division 3 of Part III of this Act or section 494 or 495 of the Criminal Code; or

(b) if an arrest is made under paragraph (a), conducting a search incident to the arrest.

(2) Nothing in section 70.1 prevents an officer or non-commissioned member from securing or preserving any evidence of or relating to the offence referred to in subsection (1) before the arrival of the civilian authority having jurisdiction in the matter.

(3) Nothing in section 70.1 prevents an officer or non-commissioned member from securing or preserving — to the extent that their powers, duties and functions under this Act, other than under subsection (1) or (2), or any other law authorize them to do so — evidence of or relating to an offence referred to in any of paragraphs 70(d) to (h) that was, or is alleged to have been, committed in Canada.

(4) An officer or non-commissioned member shall, as soon as feasible, transfer a person arrested under paragraph (1)(a) to the custody of the civilian authority having jurisdiction in the matter and transfer to them any evidence secured or preserved under any of subsections (1) to (3).

70.3 Nothing in section 70.1 prevents an officer or non-commissioned member from initiating or conducting a private prosecution in relation to an offence referred to in any of paragraphs 70(d) to (h).

Motion No. 6

That Bill C-11, in Clause 9, be amended by deleting lines 6 to 13 on page 8.

Motion No. 7

That Bill C-11, in Clause 15, be amended by

(a) replacing lines 25 to 27 on page 9 with the following:

years but may be subject to remedial or disciplinary measures in accordance with section 165.101.

(b) replacing lines 30 to 32 on page 9 with the following:

(4) On receipt of a request referred to in subsection 165.101(1), the Governor in Council may, if the Governor in Council is of the opinion that there are exceptional circumstances that justify it, suspend the Director of Military Prosecutions from office until the Governor in Council decides whether to impose any remedial or disciplinary measures.

(5) For the purposes of subsection (4), “exceptional circumstances” include circumstances in which there are allegations of serious misconduct or allegations related to a risk to occupational health and safety or to a risk of injury to international relations, national defence or national security.

165.101 (1) The Minister may request of the Governor in Council that an inquiry be held to determine whether the Director of Military Prosecutions should be subject to remedial or disciplinary measures for any reason set out in paragraphs (12)(a) to (e).

(2) On receipt of a request, the Governor in Council may appoint a judge of a superior court to conduct the inquiry.

(3) The judge has all the powers, rights and privileges that are vested in a superior court, including the power to

(a) issue a summons requiring any person to appear at the time and place specified in the summons in order to testify about all matters within the person’s knowledge relative to the inquiry and to produce any document or thing relative to the inquiry that the person has or controls; and

(b) administer oaths and examine any person on oath.

(4) The judge may engage the services of counsel and other persons having technical or specialized knowledge to assist the judge in conducting the inquiry, establish the terms and conditions of their engagement and, with the approval of the Treasury Board, fix and pay their remuneration and expenses.

(5) Subject to subsections (6) and (7), the inquiry shall be conducted in public.

(6) The judge may, on application, take any measures and make any order that the judge considers necessary to ensure the confidentiality of the inquiry if, after having considered all available alternative measures, the judge is satisfied that

(a) there is a real and substantial risk that matters involving international relations, national defence or national security will be disclosed;

(b) there is a real and substantial risk to the fairness of the inquiry such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; or

(c) there is a serious possibility that the life, liberty or security of a person will be endangered.

(7) If the judge considers it appropriate, the judge may take any measures and make any order that the judge considers necessary to ensure the confidentiality of a hearing held in respect of an application under subsection (6).

(8) The judge is not bound by any legal or technical rules of evidence and may receive, and base a decision on, evidence presented in the proceedings that they consider credible or trustworthy in the circumstances of the case.

(9) An interested party may, with leave of the judge, intervene in the inquiry on any terms and conditions that the judge considers appropriate.

(10) The Director of Military Prosecutions shall be given reasonable notice of the subject matter of the inquiry and of the time and place of any hearing and shall be given an opportunity, in person or by counsel, to be heard at the hearing, to cross-examine witnesses and to present evidence.

(11) After the inquiry has been completed, the judge shall submit a report containing their findings and recommendations, if any, to the Minister.

(12) The judge may, in the report, recommend that the Director of Military Prosecutions be suspended without pay or removed from office or that any other disciplinary measure or any remedial measure be taken if, in the judge’s opinion, the Director

(a) has become incapacitated from the proper execution of that office by reason of infirmity;

(b) has committed misconduct;

(c) has failed in the proper execution of that office;

(d) has been placed, by conduct or otherwise, in a position that is incompatible with the due execution of that office; or

(e) no longer satisfies the minimum standards and conditions of service applicable to officers.

(13) The Minister shall send the report to the Governor in Council who may, if the Governor in Council considers it appropriate, suspend the Director of Military Prosecutions without pay, remove the Director from office or impose any other disciplinary measure or any remedial measure.

Motion No. 8

That Bill C-11, in Clause 17, be amended by replacing line 10 on page 10 with the following:

17 (1) Subsection 165.17(3) of the Act is replaced by the following:

(3) The Minister may issue instructions or guidelines in writing in respect of a particular prosecution.

(2) Subsections 165.17(5) and (6) of the Act are re-

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

moved

That Bill C-11, in Clause 18, be amended

(a) by replacing line 24 on page 10 with the following:

“officer or non-commissioned member or former officer or non-commissioned member who is a barrister”

(b) by replacing, in the English version, line 26 on page 10 with the following:

“province and who has been or was a member of the Canadian”

[Maninder Sidhu, Liberal, Brampton East, ON]

moved:

Motion No. 10

That Bill C-11, in Clause 40, be amended by

(a) replacing lines 17 to 19 on page 29 with the following:

years but may be subject to remedial or disciplinary measures in accordance with section 249.181.

(b) replacing lines 22 to 24 on page 29 with the following:

(4) On receipt of a request referred to in subsection 249.181(1), the Governor in Council may, if the Governor in Council is of the opinion that there are exceptional circumstances that justify it, suspend the Director of Defence Counsel Services from office until the Governor in Council decides whether to impose any remedial or disciplinary measures.

(5) For the purposes of subsection (4), “exceptional circumstances” include circumstances in which there are allegations of serious misconduct or allegations related to a risk to occupational health and safety or to a risk of injury to international relations, national defence or national security.

249.181 (1) The Minister may request of the Governor in Council that an inquiry be held to determine whether the Director of Defence Counsel Services should be subject to remedial or disciplinary measures for any reason set out in paragraphs (12)(a) to (e).

(2) On receipt of a request, the Governor in Council may appoint a judge of a superior court to conduct the inquiry.

(3) The judge has all the powers, rights and privileges that are vested in a superior court, including the power to

(a) issue a summons requiring any person to appear at the time and place specified in the summons in order to testify about all matters within the person’s knowledge relative to the inquiry and to produ

(b) administer oaths and examine any person on oath.

(4) The judge may engage the services of counsel and other persons having technical or specialized knowledge to assist the judge in conducting the inquiry, establish the terms and conditions of their engagement and, with the approval of the Treasury Board, fix and pay their remuneration and expenses.

(5) Subject to subsections (6) and (7), the inquiry shall be conducted in public.

(6) The judge may, on application, take any measures and make any order that the judge considers necessary to ensure the confidentiality of the inquiry if, after having considered all available alternative measures, the judge is satisfied that

(a) there is a real and substantial risk that matters involving international relations, national defence or national security will be disclosed;

(b) there is a real and substantial risk to the fairness of the inquiry such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; or

(c) there is a serious possibility that the life, liberty or security of a person will be endangered.

(7) If the judge considers it appropriate, the judge may take any measures and make any order that the judge considers necessary to ensure the confidentiality of a hearing held in respect of an application under subsection (6).

(8) The judge is not bound by any legal or technical rules of evidence and may receive, and base a decision on, evidence presented in the proceedings that they consider credible or trustworthy in the circumstances of the case.

(9) An interested party may, with leave of the judge, intervene in the inquiry on any terms and conditions that the judge considers appropriate.

(10) The Director of Defence Counsel Services shall be given reasonable notice of the subject matter of the inquiry and of the time and place of any hearing and shall be given an opportunity, in person or by counsel, to be heard at the hearing, to cross-examine witnesses and to present evidence.

(11) After the inquiry has been completed, the judge shall submit a report containing their findings and recommendations, if any, to the Minister.

(12) The judge may, in the report, recommend that the Director of Defence Counsel Services be suspended without pay or removed from office or that any other disciplinary measure or any remedial measure be taken if, in the judge’s opinion, the Director

(a) has become incapacitated from the proper execution of that office by reason of infirmity;

(b) has committed misconduct;

(c) has failed in the proper execution of that office;

(d) has been placed, by conduct or otherwise, in a position that is incompatible with the due execution of that office; or

(e) no longer satisfies the minimum standards and conditions of service applicable to officers.

(13) The Minister shall send the report to the Governor in Council who may, if the Governor in Council considers it appropriate, suspend the Director of Defence Counsel Services without pay, remove the Director from office or impose any other disciplinary measure or any remedial measure.

Motion No. 11

That Bill C-11 be amended by deleting Clause 40.1.

Motion No. 12

That Bill C-11 be amended by deleting Clause 40.2.

Motion No. 13

That Bill C-11, in Clause 60, be amended by replacing line 9 on page 40 with the following:

graphs 70(d) to (h) of the National Defence

Motion No. 14

That Bill C-11, in Clause 61, be amended by replacing line 18 on page 40 with the following:

fence referred to in any of paragraphs 70(d) to

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

Mr. Speaker, I rise with a heavy heart today.

Bill C-11, when it was studied by the national defence committee, had great collaboration among Conservative, Bloc and NDP members. I believe that the members from the Liberals on committee were listening intently to what we heard from the witnesses who came forward.

There were witnesses who were victims of military sexual trauma. They are survivors who came forward bravely to provide testimony on Bill C-11 and to express their concerns about the way the bill was made. They really wanted to show that they wanted their rights as members or veterans of the Canadian Armed Forces to be respected and that they wanted to be be empowered to decide which justice system military sexual assault and misconduct would be tried in: the military justice system or the civilian one. They raised numerous red flags over what would happen if Bill C-11 were left in its original form.

Late last night, the Minister of National Defence tabled a bunch of amendments to Bill C-11 at report stage, which had already incorporated numerous amendments that the Bloc, NDP and we as Conservatives had worked collaboratively on across party lines to bring choice in what system would best suit the victims of military sexual misconduct. Our amendments would have provided greater independence to the primary players within the justice system of the military, and they took into consideration testimony coming from outside legal experts and civilian police organizations across the country.

When the Minister of National Defence tabled all the amendments that were just read into the record, essentially what he was doing was disrespecting the work of committee, undoing the hard work members had put in and ignoring the advice that came specifically from victims and also from the Canadian Armed Forces itself, which provided testimony at committee, as well as from all the military justice experts who appeared and who also provided written briefs.

I am angry about it, because it is a complete betrayal to those victims who took the time to share their experiences and put the work into studying the legislation on Bill C-11, previously Bill C-66. It is so heartbreaking to know that everything they did in stepping up to defend the rights of all victims of military sexual assault and misconduct is now getting swept to the side.

Dismissing all the testimony we heard over weeks for the study on Bill C-11 at the Standing Committee on National Defence could easily be characterized as the Minister of National Defence's not caring. He does not care about the survivors; the military leaders who appeared, such as the provost marshal general, the director of military prosecutions and the director of defence council services, and the advice they gave for greater independence; the veterans who used to hold those positions, who appeared and provided similar advice; the people who work as judicial experts within the Canadian Armed Forces and outside it; or the testimony we heard from civilian police departments across this country, whether at the provincial or municipal level.

The Bloc, the NDP, and we as Conservatives were working together and wanted to improve the bill. What we brought back to the House at report stage to be considered today would have been an improvement that would have provided the balance that victims are looking for and would have recognized the hard work that has already taken place in the Canadian Armed Forces to improve its processes to properly investigate, charge and prosecute military sexual misconduct within the system, yet it has all been swept away.

When the Minister of National Defence appeared at committee with respect to Bill C-11, he admitted he had picked up Bill C-66, never consulted with anyone else and then tabled the bill in the House without talking to victims. What he brought back as amendments to Bill C-11 at report stage just proves he never took the time to review the testimony of the brave witnesses who stepped up.

We heard from so many victims, and I just want to put some of them on the record here again. We are doing a study on the experiences of francophone and indigenous members of the Canadian Armed Forces, and just yesterday, Hélène Le Scelleur, who is a veteran and also appeared as a witness concerning Bill C-11 because she is also a survivor of military sexual misconduct, explained why survivors need to have choice about whether the cases go to the military system or to the civilian system. If we were to force all sexual misconduct cases into the civilian system, she for example, as a francophone, if the assault had happened in Alberta at CFB Wainwright, might not get the services she requires in French.

Hélène Le Scelleur, in response to a question yesterday, said that she totally agrees that survivors should have the choice, because when they are talking about specifics related to trauma and other sensitive issues, she thinks she would not be doing so in her second language. She explained that when someone is vulnerable, they do not have access to all the vocabulary they normally do. She said she would rather be able to choose the military pathway in order to ensure that she would have services in French, rather than, as in the example provided, have to stay in Alberta and have her case dealt with there even though she is from Quebec.

When we look at those types of stories, what we expect of the people who serve and how we are supposed to make sure we stand up for them, we want to drive home that the Liberals are completely ignoring what victims said at committee. Donna Van Leusden said, “For many years, survivors in the Canadian Forces had limited or flawed options, but they still had options. Under this bill, for Criminal Code sexual offences committed in Canada, survivors are given none.”

Again, the government is ramming this through because it wants to pass the buck. It wants political expediency so it does not have to deal with military sexual misconduct in the armed forces anymore, and it wants to shuffle it off to a civilian justice system that is already overburdened across this country.

We know that when the civilian system is lagging behind in prosecuting cases and hearing cases at the bench, the Jordan framework kicks in. If things are not dealt with within 24 months, they are thrown out. We know that cases that have little chance of success within the civilian system will be thrown out. We know that justice for the victims will actually be reduced, rather than victims' being provided with the choice of keeping a case in the military system, where at least under court martial and/or administrative measures they would have the ability to receive justice and the perpetrators would be held to account.

Tanya Couch wrote, “Removing the CAF's authority to investigate sexual offences would do a disservice to serving members. A more balanced approach is to establish concurrent jurisdiction between the military and civilian systems for reports of sexual assault.” Jessica Miller said, “Jurisdictional transfer risks reducing accountability, weakening discipline, lowering conviction rates and failing to deliver justice to survivors—while removing responsibility from the CAF chain of command.”

I just want to say one more thing to the members across the aisle in the Liberal Party, especially the member for Nunavut, who was the NDP defence critic when we worked on Bill C-11 and whose own amendments were incorporated with Conservative amendments but would now be thrown out by the motions brought forward by the Minister of National Defence. I ask them to do what is right for the people who are currently serving, to do what is right for the military justice system that says it now has the capacity and capability to properly try these cases, and to ensure that we give the freedom for victims of military sexual assault to choose which justice system best suits them.

[Tim Watchorn, Liberal, Les Pays-d'en-Haut, QC]

Mr. Speaker, I, too, sit on the defence committee. I would like to know what the member across the aisle thinks about all the victims who were heard by Madam Justice Louise Arbour, the hundreds of victims who were interviewed and said they did not want their sexual assault to be investigated by their boss. They wanted a separate system. What does the member say to them?

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

Mr. Speaker, I would love to know exactly what Madam Justice Arbour thought. We invited her to committee, but she did not even bother showing up to defend her report.

Let us put this in perspective. Madam Justice Arbour's study and report were done years ago. Things have changed. The director of military prosecutions had said that, on a short-term basis, they needed to adjust and pivot, and to move all cases under the ministerial directive from one of the former ministers of national defence. Because of that, the military is prepared to deal with the cases today. What Madam Justice Arbour said before is now irrelevant.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

Mr. Speaker, I really enjoyed my colleague's speech. My question is quite simple. If it were possible to make just one amendment to this bill, is there a particularly important one that my colleague would want to immediately make to the bill? If so, what is it?

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

Mr. Speaker, the key pieces of the bill that we have to maintain are clause 7 and clause 8 as the bill came back from committee and report stage. Those clauses would instill and enshrine the rights of choice for victims of military sexual misconduct and military sexual assault. Those choices, especially as they fall under the definition of sexual assault in the Criminal Code, would need to be dealt with in both systems.

With regard to what clause 7 and clause 8 would do now, with the amendments brought forward by the Minister of National Defence, the minister would be taking away all authority and all investigative and prosecutorial powers from the military and giving them solely to civilian courts and civilian police forces. That is a travesty, and it ignores the rights of the victims.

[Jeff Kibble, Conservative, Cowichan—Malahat—Langford, BC]

Mr. Speaker, I would like to thank my colleague from Selkirk—Interlake—Eastman for the incredible work he has done in committee respecting victims of military sexual trauma, and the work he is doing to rectify the problems there.

We heard testimony from civilian police forces that they had significantly limited capacity, sometimes enough to deal with two to three cases of major sexual assault, whereas in their areas, they have data saying that there have been 15, 17 or 20 cases per year. Could the hon. member speak to the capacity of civilian police forces to deal with these cases, and to what would happen with those cases they have no capability to deal with?

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

Mr. Speaker, I want to thank my colleague from Cowichan—Malahat—Langford for his hard work on this file as well. As a veteran, he has always been there to champion people who have experienced military sexual misconduct.

We heard from the Victoria Police Department that it does not have the resources or the number of investigators needed, that it is already dealing with a backlog and that it has been offered no support and no resources from the federal government. We also received a written brief from the Canadian Association of Chiefs of Police, which “strongly recommends maintaining concurrent jurisdiction” and says, “The proposed provisions in Bill C-11 would significantly hinder collaboration between civilian police agencies and the Canadian Armed Forces Military Police”.

Instead of having the ability to collaborate with our military police and national investigative service, they now have to go on base and take over all those investigations, without resources provided by the government.