Military Justice System Modernization Bill

Honourable senators, I rise today on behalf of Senator Carignan, who is the critic for Bill C-11, the military justice system modernization act.

This bill raises a fundamental question: How do we deliver justice within the Canadian Armed Forces?

Before going any further, I want to begin by paying tribute to the women and men who serve in our forces. They wear the uniform out of a sense of duty. They accept sacrifices most Canadians will never have to make, and they serve our country with remarkable loyalty. The least we owe them is to ensure they can serve in an environment where they feel safe.

No one should have to fear their own colleagues. No one should have to choose between serving their country and protecting themselves from misconduct, harassment or abuse.

The government introduced Bill C-11 in a very specific context. Section 273.601 of the National Defence Act requires periodic independent reviews of certain provisions and how they are applied, followed by a report to Parliament, an obligation that has been strengthened over time.

In that context, in 2020, the government appointed the Honourable Morris J. Fish, former justice of the Supreme Court of Canada, to conduct an independent review, whose recommendations are reflected in Bill C-11, particularly with respect to the independence of certain actors and the governance of the system.

In parallel, the Independent External Comprehensive Review released in 2022 by former Justice Louise Arbour highlighted deep problems, particularly around sexual harassment and sexual misconduct. The government presents Bill C-11 as a response to these systemic issues and a step toward restoring trust within the Canadian Armed Forces.

And that is exactly why we have to be careful here. Recognizing the importance of the Arbour report does not mean we can cling to it indefinitely, as though it alone provides an answer to every reality we face today. Since its publication, the operational context has evolved. Conditions on the ground are no longer the same, and the practical consequences of this reform must be examined in light of today’s reality.

That is why the real question, honourable senators, is this: Can we still rely on that report as though it were a complete and current answer without reassessing conditions on the ground and conducting the necessary consultations?

This question matters even more because the government invokes that report to justify shifting sexual offence cases toward the civilian system, even though witnesses at the other place reminded Parliament that several key parameters that existed at the time of those recommendations have evolved since.

The Minister of National Defence acknowledged at committee that he had not discussed this matter with Justices Arbour, Fish or Deschamps since taking office; that he could not say how many victims had been consulted during the drafting process; and, above all, that when the government retabled the bill — after the previous version, Bill C-66 — it did not consider it necessary to make changes because it believed the bill was already in the right form.

In short, this raises serious concerns about the method. A major reform is justified by reference to external authority without any demonstration that the diagnosis has been updated. This is not the first time the Liberal government has proceeded in this manner. We have seen it in other files, including Bill C-8.

At its core, Bill C-11 makes a few key changes. First, it changes the governance of the military police by transforming the position of Provost Marshal into Provost Marshal General. The appointment would no longer be made by the Chief of the Defence Staff but by the Governor-in-Council; and instead of a protected term with a structured removal process, the bill provides for a term of up to four years, with removal possible at any time.

The bill also changes the chain of accountability: Instead of general direction exercised internally and an annual report that moves through the military hierarchy, the Provost Marshal General would report directly to the minister, who could issue general written guidelines that must be made public and would receive the annual report directly.

Second, Bill C-11 changes the status of two key positions: the Director of Military Prosecutions and the Director of Defence Counsel Services. In both cases, the bill transfers the power of appointment to the Governor-in-Council and provides for a longer term — up to seven years, non-renewable — with vacancy rules requiring the position to be filled within a set time frame.

The stated goal is to strengthen the independence of these functions because, in practice, they determine whether a case is prosecuted and how an accused person is defended.

Third, it shifts a significant number of cases to the civilian justice system: For Criminal Code offences committed in Canada that are of a sexual nature or committed for a sexual purpose, Bill C-11 removes the jurisdiction of courts martial and also removes the military system’s authority to investigate for that purpose.

Finally, the bill includes related adjustments: It expands eligibility for appointment as a military judge, changes the rules on complaints of interference relating to policing functions and clarifies that military judges no longer participate in the summary hearing regime.

Honourable senators, Bill C-11 was carefully studied by the Standing Senate Committee on National Defence, where several amendments were proposed to improve the bill.

The committee heard courageous testimony from survivors and victims. The message was clear: If we truly want to protect victims and restore trust, we need a system that reflects the realities of the military environment and the constraints on the ground.

Several witnesses emphasized the same key point, specifically that victims must have a real voice in how their cases are handled.

It is in this spirit that I want to acknowledge the excellent work done by my colleague, the Conservative MP James Bezan, who worked tirelessly to improve this bill. With the support of the Bloc Québécois and the New Democratic Party, he managed to get some amendments passed based on the evidence given by survivors, veterans and experts on the military justice system. Those Conservative Party amendments sought to place greater emphasis on victims and their needs. They were centred on four key areas: support for victims, the principle of choice in certain cases, the ability of the military police to conduct investigations, and the implementation of safeguards, including a sunset clause.

I can provide a very concrete example. One amendment would have recognized a victim’s right to request that a different liaison officer be appointed when circumstances showed that the initial officer could no longer provide adequate support.

Honourable colleagues, it is precisely in light of that work that our disappointment with the approach taken by the government is so deep.

Rather than respecting the committee’s work and listening to witnesses, the government chose a different path. At report stage, the Liberals brought forward several motions to wipe out these Conservative amendments and roll back improvements adopted in committee.

And the message this sends is that committee listening only counts when it serves the government’s purpose.

Let us take the most telling amendment, one that directly affected victims and what they were asking for. The amendment put forward by James Bezan, supported by the Bloc and the NDP and adopted in committee, was straightforward. It added a clear rule to section 70: In cases involving the listed sexual offences committed in Canada, the victim, or someone acting on their behalf, could choose whether the matter would be tried by a court martial or a civil court.

Instead of imposing a single path, it was recognized that in these cases the reality is not uniform and that victims must retain some measure of control over the justice process.

Why was that amendment important? Because that is exactly what witnesses told the committee. They were not asking for abstraction. They were asking for something concrete: the right to choose.

As one survivor said in committee, “Choice is not procedural. It is freedom . . . .” And one witness put it plainly: Denying an informed victim that choice is paternalistic; it takes power away again from someone who has already been rendered powerless by the assault itself.

That amendment did not deny the advantages of the civilian system. It recognized a simple truth: Sometimes the military system is better placed to understand the operational context and act quickly, and sometimes the civilian system is preferable for other reasons.

The consequence of losing that amendment is that, in practice, we end up with a civilian-only approach. The victim’s case is then pushed into an already overburdened system, with delays that grow and an increased risk that cases will stall or be abandoned before reaching any outcome.

Without a credible plan to add resources, transferring these cases to civilian police and criminal courts simply shifts the burden onto an already overstretched process. It means more investigations carried out by municipal or provincial police services, more files for Crown prosecutors, more court time and therefore additional costs for provinces and municipalities.

Meanwhile, the federal government offloads a responsibility that belongs to military justice and sends these cases into a system already weakened by 11 years of mismanagement and delay.

Moreover, several witnesses explained that, in practice, behaviours that were addressed and sanctioned in military systems are less likely to be prioritized in the civilian system, especially when evidence is difficult to obtain or resources are limited.

And for victims, civilian-only can also mean less control over matters that matter: access to services in their language, proximity to support and having the military context — the location, chain of command and workplace environment — understood from the start.

That is precisely why the amendment was put forward to preserve an option rather than impose a single route.

This is where we see the political failure of the Liberal government. By removing this amendment, they chose to erase what the committee adopted following courageous testimony. As Mr. Bezan said, when a government treats committee work in this way, it sends a bad message: that listening to victims is secondary, and that once it has the votes, it can simply override what Parliament approved and improved.

This is not the only example. A second Conservative amendment adopted in committee illustrates the same problem. We tried to address a very real shortcoming on the ground, and then the government decided to backtrack.

The government had included a clear prohibition in the original bill. For sex offences committed in Canada and covered by Bill C-11, the original bill provided that officers and non-commissioned members had no authority to investigate with a view to laying charges. It did not merely redirect prosecutions to the civilian system; it removed the ability of military police to take certain actions.

In committee, the Conservative Party of Canada’s amendment 5, partly supported by the NDP, dealt with clause 8, the mechanism that applies when an offence is brought to the attention of authorities at a military base or training site in Canada.

Concretely, colleagues, it corrected two specific problems. First, it removed the explicit prohibition that stated the military has no authority to investigate with a view to laying charges for these offences committed in Canada.

In other words, it removed a “lock” written in that bill that limited action at the very moment when evidence and witnesses are most vulnerable.

Second, it rewrote the mechanism in a more operational way. It confirmed that military authorities can intervene and preserve evidence before civilian authorities arrive, and it framed the transfer by requiring that it happen as soon as possible, unless the victim or the representative had requested under the choice provided in section 70 that the case be tried by a court martial.

In short, this amendment prevented the victim’s choice from being cancelled in practice by an automatic transfer. Why does this matter, you ask? It’s because, on a base, we do not always have the luxury of waiting for civilian service to arrive and truly taking control of the situation in the file. Yes, the bill allows certain immediate steps to secure and preserve evidence, but that does not replace a complete on-site investigation. In this kind of file, every delay can cost witnesses, evidence and the case.

As Mr. Bezan noted, even the Canadian Association of Chiefs of Police recommended maintaining a form of concurrent jurisdiction and warned that the proposed approach risked harming cooperation between civilian police services and the Military Police. That is exactly what we must avoid: two systems watching each other while evidence withers away and is lost.

What happens when an incident occurs far from major centres? Consider a scenario like Operation NANOOK in the High Arctic. Civilian police cannot always travel there easily. The Military Police accompany our troops wherever they are deployed, colleagues. If we write into law an approach that delays actions or complicates intervention on the ground, we are accepting delays in advance and, therefore, a real risk that the investigation is weakened and that victims are less protected and re-victimized. At report stage, the Liberals passed the motion that removed this amendment.

Honourable senators, this debate isn’t theoretical. It affects women and men who serve this great country. It affects victims of sexual assault. It affects the credibility of our institutions.

Yes, modernization is necessary. Yes, the scandals of recent years must be addressed. However, modernization doesn’t mean easing our conscience on paper. Modernization means making choices that reflect military reality and truly protect victims.

What makes the situation even more troubling is the way the government proceeded. Committees adopted improvements informed by solid testimony and genuine cross-party collaboration, even between the NDP and the Conservatives, but all of that was wiped out at report stage by government motions.

This is where the political discomfort lies. The government — the Liberal majority today — is not a direct result of the last election. It was obtained afterwards through political calculation when MPs betrayed their voters by crossing the floor to give the Liberals a majority, but that’s another story.

In a parliament where Canadians did not give the Liberals a majority mandate, it is deeply troubling to see the government use its after-the-fact majority to erase in one fell swoop all the committee work and impose through report stage motions what witnesses and parliamentarians had improved in good faith.

The consequence is to weaken the role of committees, weaken the value of testimony and, ultimately, weaken Canadians’ confidence in our institutions, not to mention, erase victims and all the tragedy they have gone through.

This reversal also directly contradicts what Minister McGuinty said in committee when he claimed he was “very open” to hearing members’ views on how to improve the bill.

For precisely these reasons, in its current form, the Conservatives cannot support Bill C-11. We do not challenge the objective of better protecting victims. Quite the contrary. We want to tighten it up. But the text as it comes back to us, after improvements based on testimony were erased, creates real risks: weakening on-the-ground investigative capacity and shifting the burden onto an already overburdened civilian system. We cannot endorse a reform like that, which, rather than strengthening justice for victims, risks making it harder to obtain.

It is in that spirit that I invite you, honourable senators, to carefully examine Bill C-11 with the rigour that it deserves and not to let politics and procedural manoeuvers in the other place have the last word over the facts, the testimony and the duty we owe to those who serve in uniform, particularly the victims of these very serious allegations.

On that, honourable colleagues, I recommend we send the bill to the Standing Senate Committee on National Security, Defence and Veterans Affairs for further robust and diligent review.

Thank you, colleagues.