Moved second reading of Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts.

He said: Honourable senators, I rise today to kick off the debate on Bill C-77. This bill, which does not have an official short title, amends the provisions of the National Defence Act governing the military justice system and makes consequential amendments to other acts.

Bill C-77 consists of four main parts. First, Bill C-77 will enshrine in law important rights for victims of service offences within the military justice system. Second, it will introduce harsher penalties for service offences motivated by bias, prejudice or hate based on gender identity or expression.

Third, it will ensure that the special circumstances of Aboriginal offenders are taken into account in sentencing. Fourth, it will reform the existing summary trial process in order to ensure that minor breaches of military discipline are dealt with through a non-penal, non-criminal process called “summary hearings.”

Bill C-77 was passed by a broad majority in the other place, and all the parties supported it. In fact, most of the proposals regarding victims’ rights are based on legislation introduced by the previous government in 2015.

Honourable senators, Bill C-77 isn’t perfect. No bill is. Parts of it are potentially problematic. I will touch on those parts in my remarks, and they warrant careful consideration in committee.

Nevertheless, it is a good bill, and I support it in principle. I feel it goes a long way toward modernizing and improving Canada’s military justice system. I am both pleased and proud to sponsor this bill in the Senate.

To give you a sense of the context behind this bill, I’d like to say a few words about Canada’s military justice system. As most of you know, Canada’s military justice system is independent and separate from our civilian criminal justice system.

Members of the Canadian Armed Forces must comply with the Criminal Code and other laws governing all Canadians, but they must also comply with the Code of Service Discipline set out in the National Defence Act. The code contains a number of offences unique to the Armed Forces, such as insubordinate behaviour, quarrels and disturbances, absence without leave, and drunkenness. The regulations pertaining to the military justice system are found in the Queen’s Regulations and Orders.

Charges can be handled one of two ways: either through the chain of command by summary trial, which I will call the command stream, or by court martial, in an official court of independent military judges.

The court martial and the summary trial are both criminal trials in which the accused is presumed innocent until found guilty beyond a reasonable doubt. This separate military justice system has been around in Canada since before Confederation. It was inherited from the British system and is explicitly recognized in the Canadian Charter of Rights and Freedoms.

As the Supreme Court of Canada affirmed in a series of Charter cases, our military justice system fulfills the clear and important objective of allowing the Canadian Armed Forces to deal with disciplinary matters and thus maintain discipline, efficiency and morale.

The court recognizes that the Canadian Armed Forces face unique disciplinary challenges as they pursue their mission of defending Canada and Canadian interests at home and abroad. The court understands the need for the military to administer justice for unique service offences that simply do not exist in the civilian system such as absence without leave or drunkenness that makes a service member unprepared to carry out their duties.

The same court decisions also recognize so-called ordinary crimes can take on a heightened significance when admitted within the military because of the need for cohesion, mutual trust and morale among service members. Not only do the Canadian Armed Forces members work together, they also train together, travel together, eat together and sometimes live together in very close quarters over potentially long periods of time. It is a shared way of life, and discipline and accountability are key elements in maintaining trust, morale and cohesion among service members.

Our military justice system has evolved over the years, whether in response to legal developments in the civilian criminal justice system or to military-specific court decisions and previous legislative initiatives. Bill C-77 is part of that evolution. It builds upon certain initiatives taken by previous governments while incorporating several initiatives pursued by the current government. In this way, Bill C-77 seeks to ensure that the military justice system remains both effective and responsive to the interests of victims and other community members, the rights of service members and the disciplinary needs of the military chain of command. Let me begin by outlining how Bill C-77 enhances the rights of victims.

Bill C-77 proposes to add a Declaration of Victims Rights to the National Defence Act, an initiative introduced in 2015 by the previous government. This declaration mirrors the Canadian Victims Bill of Rights which, since 2015, has entrenched the rights of victims in the Canadian civilian justice system. Bill C-77 would entrench four victims’ rights within the military justice system. The first is the right to information. This right is proposed so that victims better understand the military justice system and their role in the system, that they are informed of the services and programs available to them and that they know they have the right to file a complaint if they believe their rights under the declaration have been denied or infringed. This right would also give them access to information about the status and outcome of the investigation, prosecution and sentencing of the person who did them harm.

The second right is that of protection. This would ensure that victims’ privacy and security are considered at all stages in the military justice system and that, where it is appropriate, their identity be protected. This right to protection also guarantees that reasonable and necessary measures be taken to protect victims from intimidation and retaliation.

The third right is the right to participation. This right ensures that victims can express their views about the decisions to be made by military justice authorities that affect their rights under this declaration and have those views considered. As a follow up to a previous bill, Bill C-77 clarifies that not only do courts martials have an obligation to consider a victim impact statement in deciding on a sentence, but victims have a right to make such an impact statement. The bill would also make it possible to submit community impact statements to a court martial to describe the harm, the loss and the overall impact of service offence on the community. Where there is harm caused to the Canadian Armed Forces, the bill would allow military impact statements to be presented so that harm done to discipline, efficiency or morale and the impact of the offence is better understood.

The fourth right afforded to victims is that of restitution, allowing a victim to ask a court martial to consider ordering restitution for damages or losses when that value can be readily ascertained. Victims would also be entitled to the support of a victim’s liaison officer should they request it. These liaison officers would be available to explain how the military justice system deals with service offences, including offences under the Criminal Code such as assault or theft. Liaison officers would also help victims gain access to the information they have requested and to which they are entitled. They would remain available to assist the victim throughout their interaction with the military justice system.

Now I’d like to move on to the second major change proposed in Bill C-77, namely infractions motivated by bias, prejudice or hate based on sex. The National Defence Act already states that the sentence for a service offence should be increased to account for aggravating circumstances if, and I quote:

(ii) the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability or sexual orientation, or any other similar factor

Bill C-77 would modernize that act by expressly adding to that list, and I quote:

gender identity or expression

This mirrors the recent amendments made to the sentencing provisions of the Criminal Code and sends a clear message that this kind of prejudice has no place in the Canadian Armed Forces. Our men and women in uniform, and those who work and live alongside them, must feel welcomed and respected at all times. In that sense, Bill C-77 builds on Operation HONOUR, which seeks to change military culture in order to ensure the Canadian Armed Forces is a respectful workplace of choice for every Canadian.

Honourable senators, we know very well that cultural change is a long and difficult process, and that it cannot be achieved with the stroke of the legislator’s pen. Legislation does make a difference, however, since it helps shape the direction of the changes needed and helps define acceptable and unacceptable behaviour. The changes to sentencing guidelines are a step in the right direction.

The same is true of the third new feature in Bill C-77, specifically the provisions to introduce the same guidelines that currently apply in the civil justice system to the military justice system when it comes to the sentencing of Indigenous offenders. For over two decades now, the Criminal Code has required courts to consider all reasonable alternative sanctions under the circumstances when sentencing Indigenous offenders. The purpose of this Criminal Code provision is to decrease the higher rate of incarceration of Indigenous offenders. That said, it should be noted that, to date, that rate remains disproportionate and unacceptable in the civil justice system.

Bill C-77 would enshrine the same sentencing principles in the military justice system, both in the official courts martial and in the new summary hearing process that I am going to describe for you in a moment. Honourable senators, fortunately, Indigenous offenders are not overrepresented in the military justice system. Nevertheless, it is appropriate for our military justice sentencing principles to consider the impact of our history and practices on Indigenous Canadians.

Let me turn now to the fourth important element in Bill C-77, namely, the proposed changes to what I earlier called the command stream of military justice. You will recall that under the current law we have what we might call a two-tiered system of justice, where charges may be dealt with by the chain of command in summary trials or by a formal court of independent military judges at a court martial. Most service offences give rise to an election by the accused to be tried by a court martial if he or she so wishes. However, for a discrete number of minor offences such as absence without leave, or drunkenness, they are automatically dealt with by a summary trial. At the risk of repeating myself both court martials and summary trials are penal proceedings where an accused is presumed innocent until proven guilty beyond all reasonable doubt.

Honourable senators, year over year, the vast majority of cases that are handled by the military justice system fall on the lower end of the spectrum and are dealt with by summary trial rather than by the more formal processes of a court martial.

According to the Judge Advocate General’s annual reports over the last few years, summary trials typically amount to about 90 per cent of all military trials, leaving courts martial to make up the other 10 per cent of military trials. The major change that Bill C-77 introduces is to eliminate summary trials altogether, and to introduce a new system of summary hearings. This builds upon and expands changes introduced by the previous government in 2015. This new system is designed to deal with minor disciplinary infractions, to be called “service infractions,” in a more efficient manner.

Summary hearings will not be penal in nature, but are rather designed to enable the chain of command to address issues affecting discipline and morale quickly and effectively. The more serious breaches of military discipline, which will continue to be known as “service offences,” would continue to be tried by courts martial.

These changes are the product of consultations by the Office of the Judge Advocate General with the chain of command. They also respond to an issue of delay in the military justice system generally, and in the summary trial process in particular, an issue raised in last spring’s report of the Auditor General of Canada. In this regard, Bill C-77 legislates a fast timeline for summary hearings to be concluded. Currently, summary trials are permitted if the charge was laid within six months after the day on which the service offence is alleged to have been committed and the summary trial commences within one year after that day.

Under Bill C-77, summary hearings may only be conducted if the hearing begins within six months after the day on which the service infraction is alleged to have been committed. Under the proposed changes, the new summary hearings would be conducted by officers who have jurisdiction if the person charged is one rank below the officer conducting the hearing or is a non-commissioned member. These changes will provide military commanders with more flexibility in dealing with these matters, and thus be able to better maintain discipline, efficiency and morale of the unit.

Honourable senators, when I was first approached, invited and asked whether I was prepared to sponsor this bill, I had many questions about these particular provisions. I raised them with representatives of both the Department of Defence and the Office of the Judge Advocate General. Most of them were answered to my satisfaction and I was comfortable agreeing to sponsor this bill. Nevertheless, several remain a matter of some concern and I would like to share them with you, as these are undoubtedly issues that will and should be pursued when the bill goes to committee.

The first concerns a question of legislative process. Summary hearings would apply to a new set of service infractions that will be created in regulations, with a corresponding scale of sanctions that will be partly in the National Defence Act and partly in regulations. Currently, all service offences are set out in the act, as are the possible sanctions.

Only the most minor of sanctions currently appear in the regulations. The question is why the definition of the new service infractions are not set out in the act itself. The reason I was given was to provide the military with the necessary flexibility to adjust their processes as they accumulate experience under this new system. But even if it is appropriate that they should be set out in regulations, should we not see the regulations before we approve this change? I am advised that the work is under way to develop the list of service infractions that would be subject to the new summary hearing process, but that work has not been completed. This is a matter that most certainly needs to be examined at committee. For the moment, let me offer the following based upon the responses I have received to my questions.

First, the idea is that these service infractions will only capture very minor breaches of discipline. We are talking about matters as relatively minor as having dirty boots or unkempt hair. And at the risk of repeating myself, all service offences, including breaches of the Criminal Code and other statutes, will continue to be dealt with by the courts martial process.

Second, while summary trials are limited only to certain powers of punishment from among the options more broadly available at court martial, summary hearings will be even further limited. Summary trials, for example, can impose detention of up to 30 days, but that option will not be available at summary hearings. The maximum sanction that could be imposed in a summary hearing is a reduction in rank, followed in descending order of severity by a severe reprimand, a reprimand, deprivation of pay or allowances “for not more than 18 days.” The least severe would be a group called “minor sanctions” to be prescribed in regulations. Again, these are not penal sanctions. They are not intended to punish. But rather, sanctions tailored to maintaining compliance in view of the particularities of service life.

The second and related concern is with the standard of proof. The officer who conducts a summary hearing would only have to assess whether the person committed a service infraction on a balance of probabilities. This is a typical standard of proof in a civil and administrative proceedings. Under the current system of summary trials, proof must be established beyond all reasonable doubt, the standard of proof in a criminal trial. An amendment to maintain this higher standard of proof for service hearings was introduced but narrowly defeated in the other place.

In my view, this a matter that also deserves and merits further study at committee. I should say, however, that I find considerable merit in the balance of probabilities standard. After all, a summary hearing would only be applicable to a new set of service infractions which, by definition, would be very minor disciplinary infractions. Moreover, summary hearings would not give rise to the full range of sanctions and punishments that may be imposed after a trial in respect of a service offence. Indeed, the consequences would not be penal in nature. The person subject to the summary hearing process would not be found guilty or not guilty, but rather to have committed or not to have committed a service infraction. Proof beyond all reasonable doubt seems to me to be an unnecessarily high bar in such a context.

Honourable senators, before concluding, I would be remiss if I did not address one of the main criticisms of Bill C-77, which is that it does not repeal the service offence of wilfully injuring oneself with intent to render oneself unfit for service. As our society has become more sensitive to mental health issues, including those mental health conditions that affect and afflict those in uniform, we ought be concerned that maintaining this offence in the National Defence Act could discourage people from coming forward and seeking help for fear that they may be punished for self-harm.

I agree with those who argue that this offence bears reconsidering when the National Defence Act as a whole is next up for review in 2021. That said, this issue is outside the scope of Bill C-77 and I will say no more about it at this time.

Honourable senators, I conclude where I began. Canada’s military justice system is a unique and necessary part of the larger Canadian legal mosaic. It contributes significantly to the ability of our Armed Forces to achieve its missions in Canada and around the world.

Bill C-77 represents a significant step forward towards modernizing and improving Canada’s military justice system. Although it does raise several concerns, some of which I have pointed out in my remarks today, I am confident that they will be examined carefully at committee and, overall, Bill C-77 is a good bill. I support it and would encourage you to do the same.

Honourable senators, thank you for your kind attention.

Of course.

Thank you for the question, senator. Indeed, I read the testimony. I am aware of the very legitimate concerns you just raised. We are receiving pertinent witnesses in committee, and they will clarify these issues. As a senator, I am always open to any change that seeks to improve a bill. That is our constitutional duty.

That being said, I asked the military representatives the same question in order to better understand the scope of the bill before agreeing to sponsor it. I was told that besides the declaration of victims rights, there is an entire process that ensures that information is provided to victims. We must approach the whole issue from a broader perspective. We can’t just rely on the text of the declaration to determine the scope of the services provided to victims. I look forward to raising this matter in committee so it can be studied further.

Gladly.

Thank you for your question. I can’t give you the answer you may be looking for. We will take a hard look at this issue as soon as possible in our debate at second reading, as we always do. We will do our best.

With pleasure.

I never practised law. I was a professor of law. As a professor, I always wait to hear from all the witnesses before discussing an issue and taking a position.