National Defence Committee on Jan. 28th, 2026

[The Chair, Liberal, Charles Sousa]

Yes, by all means, go ahead.

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

We heard throughout testimony that victims were definitely asking for choice in Bill C-11 on whether they stay within the military justice system or are transferred out to the civilian justice system. Probably the strongest testimony we heard on that came from Hélène Le Scelleur in our 15th meeting:

For me, this is why choice is really, really important at all levels. Even if we say now that it was always there, and that the choice was possible, some of them never reported, like me, because they were scared and knew the consequences. I would say that choice is offered maybe on paper, but is it the case in reality? From most stories I've heard, it's not the case.

Justice Deschamps said in her testimony, “I support a system that gives victims a choice, so my answer is yes.”

We heard from numerous witnesses—and I'll leave others to speak to that—who wanted the choice.

If we're going to put justice back into the hands of the victims, we have to give them the choice as to which system they want handling their court cases, whether in military justice, with courts martial or summary hearings, or in the civilian system.

Thank you.

[The Chair, Liberal, Charles Sousa]

Thank you, Mr. Bezan.

Is there any debate?

Ms. Romanado.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Thank you very much, Mr. Chair.

I have some questions for our experts who are here with us today. I have a few questions, so I'll go one at a time.

Could you tell us if this amendment is a trauma-informed approach for the victim, in your opinion?

[Lieutenant-Colonel Matt MacMillan, Director, Military Justice Implementation, Office of the Judge Advocate General, Canadian Armed Forces, Department of National Defence]

Thank you for the question.

In relation to victim choice, we've heard a lot about that at the committee...participation of victims. What it does in relation to this kind of piece.... Madam Justice Arbour indicated that there should be no choice that puts an unfair burden on victims, so it is contrary to Justice Arbour's recommendation five.

In essence, it's something of a false choice in relation to a victim. The way the motion is drafted, it says the victim “may choose” where the matter is prosecuted. Ultimately, where something is prosecuted is the prosecutor's determination. It's prosecutorial discretion. They have the fundamental aspect, as a principle of fundamental justice, to make an ultimate determination on where and whether a matter is prosecuted.

Even if a victim chose to have a matter proceed at court martial in relation to this matter, ultimately it would be the director of military prosecutions who would have to determine whether that is the proper venue, based on a number of considerations, including what the victim contemplated or what the victim may wish. That's only one aspect of many public interest factors that would have to be determined in relation to where a matter should be prosecuted.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Based on what you just mentioned—I mean, it's very clear that this is against recommendation five of Justice Arbour—would you agree that this is not a trauma-informed choice, that this is not a trauma-informed approach and that this would be left to a victim to decide when they don't actually have the ability to decide, because it is the prosecutor who decides whether to lay charges? Is that correct? Am I understanding that correctly?

[Lcol Matt MacMillan]

It would be difficult to determine, at the end of the day. The victim may make a choice that they want to go one way or the other, but the choice is not ultimately theirs, because the prosecutor will make the determination. They may choose or say that they want it to go to the court martial system, but once the matter is brought to the director of military prosecutions, ultimately, the director will determine whether it will go to court martial.

At the end of the day, while a victim might assume to choose, their decision can't fetter the discretion of the prosecutor. They'll be left with the burden that they've made this choice and now it's not proceeding to the actual court martial itself because of the determination of the director of military prosecutions.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

On that note, in the example you gave of the victim saying they'd like it to go to court martial and the prosecutor, after reviewing the case, deciding they're not going to pursue it, I can imagine what that would do to the victim. It would almost revictimize them: “I made the wrong choice; if I had gone the civilian way, maybe the prosecutor would have pursued it.”

Could that happen?

[Lcol Matt MacMillan]

For certain, it could happen. One of the issues with the motion as it's before me is that one of the determinations that needs to be made is the jurisdiction at the outset. This is dealing with section 70, so clause 7. You still have clause 8, which removes the jurisdiction of the military police to investigate. In essence, what will happen in this situation is that the civilian police will investigate the matter. If they're investigating the matter, they are going to pursue charges in the civilian system if they deem it to be reasonable in the circumstances and want to proceed with charges.

The civilian police do not have the authority to lay charges within the court martial system. In this instance, the civilian police would investigate. If the victim doesn't want the matter to proceed in the civilian system, they would have to look for an avenue to bring it back to the military justice system. In that instance, the civilian police would not be able to lay those charges. A charge-laying authority within the military justice system would have to proceed. In this instance, it's going to be either the military police or a member of the chain of command who has the authority to lay charges. They may or may not have access to the investigation of the civilian police, and they themselves have to make the determination that they are going to proceed with laying charges.

Not to put words into the mouth of the police, but I would suspect that, ultimately, they are going to look to interview the victim again in that instance. With the lack of clarity on where it's going, it puts on a burden, and it is potentially a situation in which the victim will be questioned on multiple occasions from multiple different organizations that have an interest in the matter: First, the civilian police have jurisdiction to investigate, and there will potentially be another mechanism, once the determination is made—after the person is charged—to try the matter in the military justice system.

On that front, based on how proposed subsection 70(2) is drafted, it speaks about the person who is charged...of those offences. The civilian police, as I said, would lay charges under the Criminal Code. The court martial does not have jurisdiction to try matters under the Criminal Code—only under the code of service discipline. Those charges would be withdrawn by the police or prosecutor and then re-laid under the code of service discipline, pursuant to the Criminal Code.

That's very technical in this sense, but court martial deals with code of service discipline offences. Civilian court deals with Criminal Code offences. There is an overlap based on how the code of service discipline is drafted. That's how all Criminal Code offences and any other offence under any other law are brought within the code of service discipline, but it's not as simple as just charges being tried in one place or the other. A mechanism and a framework have to be followed in order to advance the prosecution.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

You also mentioned something about the principle of prosecutorial discretion. The way this amendment is drafted, would this be constitutional?

[Lcol Matt MacMillan]

There would ultimately be a question as to whether it's constitutional. It purports to say that the victim may choose whether the person charged with the offence is to be tried by a court martial or a civil court. That purports to fetter the discretion of a prosecutor. In that sense, there are questions about whether it would be constitutional. At the end, even if they choose one or the other, the prosecutor would make that decision, which then potentially gets into some challenges for the victim in relation to the decision they made in the first instance. Really, the jurisdiction should be determined at the earliest onset to avoid these challenges.

[Sherry Romanado, Liberal, Longueuil—Charles-LeMoyne, QC]

Thank you.

[The Chair, Liberal, Charles Sousa]

Thank you, Ms. Romanado.

I have Mr. Anderson, then Mr. Savard-Tremblay and Mr. Kibble.

We'll proceed.

[Scott Anderson, Conservative, Vernon—Lake Country—Monashee, BC]

Thank you.

In the civilian system, the prosecutor ultimately decides whether to go forward. Is that correct?

[Col Geneviève Lortie]

Yes, it is.

[Scott Anderson, Conservative, Vernon—Lake Country—Monashee, BC]

It's the same in the military: The prosecutor in either the military or the civilian system could decline to prosecute. Is that correct?

[Col Geneviève Lortie]

The prosecutor will decide if it will proceed to court martial. You're right that in the military, we have the same system. It's really for the court martial.

[Scott Anderson, Conservative, Vernon—Lake Country—Monashee, BC]

That has no real bearing on it. Whether it's the civilian system or the military system—either one—the prosecutor has the discretion to do that.

[Col Geneviève Lortie]

You're right. Both systems have the discretion.

Here, we're looking at the time when choosing is proposed. Charges have already been laid. It means that the decision has already been made, and you're going to encounter challenges under the Jordan delays. We know this is applicable to both courts—the civilian court and the military court. You have 18 months to get to the end of the trial. The time starts from the laying of the charge.

That provision starts from the beginning. When the charge is already laid in one system, in the civilian court, but they want to go under the military justice system, to do that, all the steps that were described by my colleagues need to happen. This process takes time—to review the file, to get the legal advice that is required, to the point of the referral of charges to court martial. One of the first challenges you could get is with Jordan delays, because you start in one and you need to get out of one and get into the other one.

[Scott Anderson, Conservative, Vernon—Lake Country—Monashee, BC]

With regard to the Jordan decision, we've heard from military prosecutors, military defence and the chief of police of Victoria. The military says it has the capacity and the capability. The civilian system essentially says, through the chief of police of Victoria, that it has the ability but not the capability. It simply can't take on this sort of work. I would suggest to you that the Jordan decision would have an impact much more frequently in the civilian system.

I want to point out.... I can read the list of witnesses, but we've all heard them. Everybody except for one asked for choice, including the experts and the victims.

I'd like to point out something that Dr. Karen Breeck said:

First, the military of 2025 is not the military of 2015.

That's when all of these reports were done. She continued:

Many problems identified in the Deschamps and Arbour reports no longer exist. Today the chain of command has extensive awareness and training. The sexual misconduct support and resource centre is fully operational. Victims' rights legislation is in force. Independent legal and victim supports exist. The duty to report has been removed. What evidence still shows that recommendation five remains the best way forward?

I would suggest that things have changed dramatically. Right now, people are still asking for choice. Victims are still asking for choice. Frankly, I find it paternalistic to hear Minister McGuinty sit here and say it's a false choice, when it is an obvious choice. It is civilian versus military. It's not a false choice; it's a choice that the victim deserves to have and should have.

Thank you.

[The Chair, Liberal, Charles Sousa]

Thank you.

Mr. Savard-Tremblay.

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

Indeed, in light of the testimony that has been heard, many have suggested free choice and recourse to military courts, but that was not the case for everyone.

In light of what we are hearing now, I think that amendment BQ‑1, which I will propose later, will be a better compromise. Therefore, I am against this proposal. Mine is in line with the objective and the idea, while being more realistic.

[The Chair, Liberal, Charles Sousa]

Mr. Kibble, you're up.

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

Thank you, Mr. Chair.

I have a couple of questions and comments that I'd like to share.

Lieutenant-Colonel MacMillan, you referred to the Constitution. Are you a constitutional law expert?

[Lcol Matt MacMillan]

I'm not.