Military Justice System Modernization Bill

Honourable senators, when shall this bill be read the third time?

Honourable senators, with leave of the Senate and notwithstanding rule 5-5(b), I move that the bill be read the third time now.

Is leave granted, honourable senators?

Hon. Senators: Agreed.

Honourable senators, I rise today to speak at third reading of Bill C-11, An Act to amend the National Defence Act and other Acts or, as I referred to it at second reading, the military justice system modernization act.

In my second reading speech, I spoke about the principles of the bill before us, namely modernizing the military justice system in Canada, with a focus on implementing recommendations from two independent reviews. The focus of many of the elements in this bill is on issues impacting sexual misconduct, which aim to bolster members’ trust in the military justice system, while enhancing support for victims and the need to enhance independence in the military justice system.

Like the Senate — where I now serve alongside all of you — which has seen an evolution or modernization, if you will, the system of military justice in Canada is in continual evolution and modernization to be fit for purpose. To be clear, the purpose of the statutorily distinct military justice system is to maintain discipline, efficiency and morale in the Canadian Armed Forces.

As we learned in our National Security, Defence and Veterans Affairs Committee, there are many ways in which Bill C-11 updates and modernizes the military justice system in Canada. Many of those are well supported by senators, members of the other place and the various witnesses who appeared before the committee. These include giving more independence to the Director of Military Prosecutions and the Director of Defence Counsel Services by making them Governor-in-Council appointments with fixed terms.

Similarly, the role and position of the Canadian Forces Provost Marshal, which is like the Commissioner of the RCMP, will be changed to the title of Provost Marshal General and, with the passage of this bill, will report directly to the Minister of National Defence as opposed to the chain of command.

This is a critical consideration to instill not only independence in the military police but also to instill a bit more trust in the military justice system by the members who are subject to it.

Additionally, Bill C-11 expands the pool of those who would be eligible to serve as military judges in the Canadian Armed Forces to non-commissioned members.

We learned at committee that the administration of military justice in Canada relies on Reserve Force members working in various military occupations on a part-time basis, but in their full-time jobs, they are legal professionals in their civilian lives. Bill C-11 will allow for non-commissioned members of the Reserve Force who are lawyers in the civilian justice system to become military judges. In broadening the pool of potential military judges, we can make military justice more diverse and benefit from bringing outside experience and expertise into the military justice system.

Colleagues, our Standing Senate Committee on National Security, Defence and Veterans Affairs moved quickly in its study of Bill C-11. As was mentioned in the report, the committee heard from 19 witnesses over two days of hearings, including the Minister of National Defence, the Chief of the Defence Staff and other senior commanders, leaders and experts in the Canadian Armed Forces and the Department of National Defence. The committee also heard from veterans who have professional expertise in military justice.

Most importantly, we also heard from witnesses who have lived experience. They were the ones who had been harmed after experiencing sexual trauma in the military.

In a perfect world, the committee would have had more time to undertake a rigorous, thorough and extensive examination of this complex, human-based issue. However — and I will borrow a term from my past life — for operational reasons, that course of action was not available to the committee. Regardless, I am very proud of the work the committee was able to accomplish in the time we had. I want to thank all of you for accepting my recommendations to ensure that we had diverse panels that represented all aspects of the military justice system and those who experience it.

Bill C-11 contains 69 primary clauses and numerous subclauses. In committee, while we heard testimony on virtually all the clauses, clauses 7 and 8 preoccupied most of our attention.

Clause 7 ends concurrent military and civilian prosecutorial jurisdiction over Criminal Code sexual offences, while clause 8 removes military police investigative jurisdiction over Criminal Code sexual offences. Clauses 7 and 8 are those that flow directly from the Independent External Comprehensive Review undertaken by former Supreme Court justice Her Excellency Louise Arbour. To once again borrow a term from my past, the bottom line up front is that these two clauses codify in law Her Excellency Louise Arbour’s recommendation that responsibility for dealing with Criminal Code sexual offences committed by Canadian Armed Forces members in Canada be transferred from the military justice system to the civilian justice system. I say “codify” because, since late 2021, the Director of Military Prosecutions in Canada has deferred and directed all Criminal Code sexual offences alleged to have been committed in Canada by members of the Canadian Armed Forces to the civilian justice system.

However, military police have continued to maintain concurrent jurisdiction when it comes to investigations of Criminal Code sexual offences, working collaboratively with their civilian counterparts.

In his remarks to the committee, the Minister of National Defence spoke about getting Bill C-11 right and completing the work of former Justices Arbour and Fish, calling it an obligation, not just to survivors but also to serving members and all Canadians.

So, allow me to take a deeper dive into Bill C-11 and the civil‑military relationship.

In a democracy, we have civilian control over the military. While there are many theories on how that control is best exercised, all theories of civil-military relations and civilian control rely on outside oversight of the military in a democracy. This is because the military is the only legitimate tool of the state that manages and carries out violence on behalf of the state. Members of the Canadian Armed Forces are highly trained professionals who are enjoined and serve with unlimited liability. Why? If their skill sets were ever to be turned onto the Canadian people and if civilian control were not there, I think you could imagine that the results would be disastrous. We need only look elsewhere in the world to see what happens without civilian control over militaries.

That is why it is civilian political leaders who provide oversight and control of the military, whether that be through policy direction, which is the prerogative of the Government of Canada, or through holding the government to account as parliamentarians, which is one of our responsibilities.

That is why when bills like Bill C-11 come before us, we need to think of the institution, which is the Canadian Armed Forces, but also of the Canadians who choose to serve: the Canadians who have volunteered to serve their fellow Canadians, knowing their very lives are at risk, and who place their trust in us to exercise our role with due diligence and sober second thought.

It is even more important because, as you have all heard me say before, the Canadian Armed Forces have all the attributes of a province. They exist and operate independently, with a professional body of knowledge and their own education, employment and health systems, as well as — of particular import in the debate today — their own justice and policing systems.

Parliament is wholly responsible for the security and well-being of those who serve in the Canadian Armed Forces. We and our colleagues in the other place are it; we are the only governance representatives that those who serve in the CAF have.

Her Excellency Louise Arbour recognized that in her Independent External Comprehensive Review. She spoke about accountability and ensuring that accountability for the lawful direction of the military in Canada was properly placed and understood, with a particular focus on helping to address the challenges created by sexual misconduct occurring in the CAF.

To quote from page 107 of her report:

. . . there needs to be a greater assertion of responsibility at the political level to insist upon the implementation of necessary reforms.

The bill before us, Bill C-11, helps to do that. It puts the question of who has jurisdiction over Criminal Code sexual offences in our hands, as parliamentarians.

As an aside, I would note that the day I was sworn in as a senator was the same day that the Minister of National Defence’s report to Parliament on culture change reforms in response to Her Excellency Louise Arbour’s recommendations was tabled in this chamber and the other place. I think my destiny was set. While the Arbour report may only be four or five years old, I want it to be known that the Canadian Armed Forces have been working on evolving their culture for over a decade.

I said earlier that the committee process seemed a bit rushed, but that was a decision taken at the political level. Even with shortened timelines, those who had lived experiences came forward, on short notice, to inform committee members what Bill C-11 means to them. Remember that this bill also aims to enhance victim support services.

To those people who are watching today, I want to thank each of the witnesses with lived experience who took the time to appear and submit briefs so that committee members could hear from you. Your strength and tenacity in looking to improve the system and to prevent others from experiencing the devastating effects of military sexual trauma are remarkable. Thank you.

One witness in particular, Major (Ret’d) Donna Ven Leusden, hit the mark when it comes to moving forward, as doing nothing is not an option. She said:

So, I am asking the Senate to focus not only on where cases are heard but on how survivors are treated once they get there. Legal reform without trauma-informed reform will not deliver justice. Process reform without survivor agency will not deliver trust. Jurisdictional reform without cultural reform will not deliver outcomes.

We do not need another report. We do not need another study. We do not need another reorganization or another name change.

Survivors have already spent decades telling institutions what would help. We know what survivors need. The question before us is whether we are finally prepared to implement it because, if not, this risks becoming just another bookmark, another gesture, another promise and another way of telling survivors they have been heard while ensuring nothing really changes.

We deserve better than that.

While this is not an endorsement of clauses 7 and 8 by any means, I think it serves as a warning and a call for action, indicating that we’ve listened and that we need to move forward. I agree, colleagues, we can do something, even if it is imperfect. By adopting the amended Bill C-11, we are doing something.

The decision is in Parliament’s hands. Yes, Bill C-11 does have its shortcomings. There may be potential second- and third‑order consequences that result from its passage. We’ve heard this from many witnesses and many different actors within the military justice system.

Many senators and witnesses spoke about one of those consequences, and we are asking ourselves about it today: What if the transfer to the civilian system doesn’t achieve what it aims to do? What if it does?

We know that the civilian justice system in Canada is overburdened; that access to justice for all parties, in any case, is not equitable; that support for victims can be difficult; and that Indigenous Peoples and racialized Canadians are more likely to be incarcerated in Canada.

So what happens if we get it wrong with Bill C-11 and transferring jurisdiction of Criminal Code sexual offences from the military justice system to the civilian one ends up doing more harm than good? This is a question that has preoccupied me and many senators, as well as many members of the other place, and that is why many had originally called for a sunset clause to be inserted in the bill. Now, let’s talk about that.

A sunset clause in this instance would have seen the transfer of jurisdiction expire after a set period of time unless Parliament further endorses the transfer to continue on in the future. I truly understand the appeal of a sunset clause. However, as I have come to learn, sunset clauses in criminal justice can have some pitfalls. Namely, what if Parliament is not in a position to determine its will, due to being dissolved or prorogued when the time runs out?

The proposed sunset clause for Bill C-11, which was moved in the other place, would have seen jurisdiction revert to the military justice system in four years’ time, essentially — and think about it — smack dab in an election or shortly thereafter. Remember, people are impacted by this.

To that end, I put forward an amendment in committee that was agreed upon by the government in the other place, which includes a statutory requirement for the Minister of National Defence to call for an independent review on the impact of the transfer of jurisdiction of Criminal Code sexual offences to the civilian system after three years.

The word “independent” is the same one already used and accepted by those who have been harmed by the system. It already exists in the National Defence Act as the basis for the three statutory reviews undertaken pursuant to section 273.601 of the act.

At committee, we also heard about the need for data to assess whether the transfer of the jurisdiction of Criminal Code sexual offences from the military to the civilian justice system is working as proposed.

The amendment made in committee calls for the review to include, but not be limited to, certain data points, such as the number of cases transferred, the services available and offered to victims, an evaluation of the advantages and disadvantages to the military justice system overall, and measures taken to enhance access to justice for all members of the Canadian Armed Forces.

Colleagues, those last two points are important. As I said in my speech at second reading, the military justice system, as recognized by the Supreme Court, exists as a separate and distinct system. It is essential for ensuring good order and for maintaining discipline, efficiency and morale in the Canadian Armed Forces. Canadian Armed Forces members need to trust that the system works fairly and justly for all those who serve under it. Offences, including Criminal Code sexual offences, rarely happen in isolation.

We heard at committee that, often, other offences, such as stalking or harassment, are precursors to Criminal Code sexual offences. So it is not simply a matter of removing one type of offence from the military justice system and then washing one’s hands of all the others. Consideration needs to be given to the overall system and its ability to deal with offences and maintain good order and discipline.

There is also the matter of those who are accused, which is a sensitive subject, but in Canada, all Canadians are entitled to justice.

As we have heard from the military Director of Defence Counsel Services, Canadian Armed Forces members, under the National Defence Act, are in a unique position. Serving members, even those accused, are ensured of representation in the military justice system pursuant to section 249.17 of the National Defence Act, at no cost.

This is in recognition of the extraordinary obligations of military service, as recognized by Justice Fish in 2021. We know that in the civilian system there are no such guarantees.

Yes, we have also heard that there are assistance programs like Legal Aid, but it is highly unlikely that Canadian Armed Forces members would qualify. As we have heard in this place time and time again, access to justice has a direct correlation to socio-economic status. Costs for the accused can be astronomical, and we always have to ensure that there is justice.

I will also add other factors within the military justice system for serving members accused or who have been victimized within the system, but what I want you to understand is that geography, in cases of Criminal Code sexual misconduct, is also a complicating factor when it comes to Canadian Armed Forces members who have been accused of these types of offences.

Please remember that people serve from coast to coast to coast and internationally. An offence could take place in one jurisdiction, while the accused is in a completely different area of the country, with witnesses who are deployed internationally. Please remember that not all military bases are in major centres.

The military justice system takes the unique requirements of service into account by bringing justice to where the member is rather than making the member travel to access justice. This is why consideration for both those who have been victimized by the system and the accused is a really important application of justice in the military context.

I will tell you why that matters. We are going through a recruiting and retention challenge in order to ramp up to face an increasingly unstable world. I can tell you that every member of the Canadian Armed Forces watches closely. I know. I get the messages.

If you think about it, as we have talked about, Criminal Code sexual offences happen within a family-like setting. Often, the accused and the victim are located in the same geographical area and in the same unit. They work and live together. They eat together. They may deploy together. They have colleagues, friends and partners around them. Any perceived injustice done to either the victim or the accused will, and has had, a direct impact on morale and team cohesion, and it will have an impact on decisions made by Canadian Armed Forces members about whether to remain as members of the force. I just want to share that with you.

Finally, the amendment made in committee calls on the minister to table their opinion as to whether the transfer of jurisdiction has been successful in both houses even though success has yet to be defined. It also codifies that he or she must state whether it should be maintained or repealed. Again, I’m talking about clauses 7 and 8.

So if, in the opinion of the minister, it should be repealed, then the amendment includes a repeal provision, rather than a sunset clause, saying that a motion will be presented in each house of Parliament to concur with that opinion. If concurred with, the amendment calls on the government to introduce legislation to repeal the jurisdictional transfer.

This is important because, regardless of the government of the day, this already exists in statute to be enacted regardless of the political party in charge.

So this is actually about accountability. I can tell you that those who have experienced military sexual trauma — the survivors and the victims — are watching us today, and now we will be watching the government. But this will be in three years’ time.

I can tell you that those who are watching today are going to decide whether they can trust us.

Accountability — to reinforce it — is not just a matter for the Canadian Armed Forces and the chain of command; it is about all of us as well. As Madam Justice Arbour said, responsibility and accountability must lie with us. Collectively, government, parliamentarians and the military chain of command have an obligation to protect those who serve with unlimited liability.

The government has an obligation to ensure that the policies and objectives directed to Canada’s military are clear. The chain of command’s obligation is to implement those directives to the best of their ability, taking into account the uniqueness of the military environment, and to best maintain the security of those who serve.

As parliamentarians, our obligation is to ensure the laws that we pass are clear, and I think Bill C-11 assists with this. We must ensure they are also based on reasoned arguments, backed by data and experience — sober second thought, if you will — and that they are as fair and just as they can be so that the law is applied equitably.

We are not here to debate the culture of the Canadian Armed Forces because we know that laws cannot change culture, but they provide essential barriers, boundaries and limits.

I would be remiss if I did not remind my colleagues that the Canadian Armed Forces have made enormous strides on the culture front over the past decade in addressing sexual misconduct. But more must be done, and this bill will assist.

Canada is a country that believes in democracy, the rule of law and civilian authority. As political leaders, each of us, we have a duty to serve our fellow Canadians in legislating in the best possible way we can. That includes members of the Canadian Armed Forces, because every member serving aboard every Royal Canadian Navy ship, every soldier of the Canadian Army who carries a rifle, every aviator who belongs to the Royal Canadian Air Force, each one is a Canadian, full stop. They are our family members, friends and our fellow Canadians.

While we may not always get it right as legislators, we still have a duty to move forward. On that, I agree. We have to do what we believe is best.

It also is on us to hold the government to account if their promises to those who serve in the Canadian Armed Forces seem to be going astray.

Bill C-11 may still have some flaws, and there may be unintended consequences that we have yet to foresee, but this amended bill provides not only widely agreed-upon changes that will help the Canadian Armed Forces continue to move forward and address sexual misconduct more effectively, but it will also provide us with the statutory requirement to ensure that in-depth study and review or repeal, if needed, are in place. I do believe that’s in keeping with the spirit of Her Excellency’s recommendations.

Overall, it is an important step in modernizing the military justice system in Canada in response to sexual misconduct. I support Bill C-11 and I hope you, too, can support it at third reading.

Thank you.

Would you take a question?

Always. Thank you.

Senator Patterson, I heard Senator Yussuff say in presenting the National Security and Defence Committee’s report today that the committee’s study of this major government bill, Bill C-11, was “truncated.” Yet, it has been clear for many months, and certainly in the House of Commons committee, that so many victims of sexual assault in the military want the choice of jurisdiction in these extremely sensitive and difficult cases. I had the brief chance to ask you about this topic after your second-reading speech.

Senator Carignan brought an important amendment at committee to restore that choice for victims. That amendment failed in a tied vote, 7 to 7. You voted against it. Your vote could have carried the day to restore choice for those victims. Why did you vote that way?

Thank you, Senator Batters. That’s a critical question, so thank you.

What is choice? This is another discussion we had. We’ve spoken for a long time to victims of military sexual trauma and given the impression that they have the choice to pick which system they can be tried in. It was one of the areas that Her Excellency Louise Arbour studied; she talked to hundreds of people who had been victimized within the system. Yes, there was a split decision about one system over the other.

Then we talked about what choice is. Victims of Criminal Code sexual offences retain the choice to move forward or not. They had the choice to state a preference. But, at the end of the day — whether it be a civilian Director of Public Prosecutions or the Director of Military Prosecutions — the final decision on the jurisdiction for trying that case came from them.

I know it feels like I’m skating around what you said. I think that was a very compassionate amendment.

Right now, the government has clearly stated they are moving forward with this. The amendment gives us the ability because it has been going on since 2021. We need the data. I agree that we need the data. The amendment gives the proper study to have a look at what this is doing to victims.

Now, going back to your point about victim choice, we have heard from many witnesses, including experts in the area, that one of the bigger predictors of outcomes of someone who has experienced sexual trauma and sexual assault is having some control and choice in the system.

While the movement forward is to continue with what currently exists, changing jurisdiction, the other part of the bill that I think is essential is increasing victim support services, expanding who can actually speak on behalf of the victim to include trusted members.

While I understand that’s not exactly the same as what you have said in terms of Senator Carignan’s response, it is the system looking at other areas to give them voice through legal counsel, to improve victim liaison services, to make sure that the wraparound services through the different support centres are there and not just pass them over to the system.

This is why I also have concerns and why it was so important to me that this amendment included a study. Show me the proof that it is or not working.

Senator Patterson, all of those things should be happening anyways. Support for victims, ability to have legal advice — all of those things should be happening regardless.

As you said, victims of sexual offences often feel like they have had the most fundamental choice taken away from them.

Now, the government — through this House of Commons committee situation where they took away the ability for them to have a choice — took that choice away from them in deciding whether they get to go through that one certain process, which may work for some and may not work for others, or the other one.

I didn’t really hear your viewpoint. I didn’t really hear the answer to the question as to why you decided that was acceptable in your mind.

You seemed to be also referring to this three-year review. We have heard a lot about three- and five-year reviews. I know at Legal Committee there are many different topics where matters are set for those types of reviews and they never happen, lots of times because our committee never has time to undertake those studies. Is that also a matter of concern for you?

Thank you, Senator Batters, as always. These are always great questions, so I appreciate it.

I will focus on the review. I will focus on what Her Excellency was trying to reinforce. I will talk about the military side here. It is us being accountable.

Your point about committees and too much to do to get to a review is a good excuse. I say “a good excuse,” but I don’t know how I would explain that to members of the Canadian Armed Forces, particularly those who have been harmed. Putting the emphasis back on Parliament as decision makers to follow up, to be trustworthy with what they have actually put and codified — which is another point from Her Excellency; it needs to be codified, which is why this is now a statutory requirement — is important.

We need to do what is right. We can hear. How I chose to vote was consistent with my opinion on this bill. I believe this bill adds value but that does not ever — my concern is we must not take our eyes off the ball. It may be only me as a senator. It may be.

There are tools within our means to push to say it sits in there. It is codified. Where are you? It will be on the Minister of National Defence to move this forward. I know that’s a really ambiguous thing to say, but I promise that is what we can do. We will talk again when we need to, for survivors and people who have experienced this.

Will Senator Patterson take a question?

Yes.

First, let me start, Senator Patterson, by thanking you for taking on the responsibility of shepherding this bill through the chamber.

As you are aware, the recommendation that subsequently formed the bulk of Bill C-11 came from Madam Justice Arbour, and her recommendation and insights came from the Canadian Armed Forces members whom she spoke with.

What was clear in her recommendation was that the military justice system had failed women and failed them miserably in regard to sexual misconduct. That’s why there was the recommendation to move from the military justice system to the civilian system. In the context of the civilian system, if you were to ask Canadian women writ large how well that system is functioning, we may not like the answer equally. We have many instances where that system has failed women in a miserable way, such as time delays where cases are thrown out of the system, and women feel that because of their gender, they are subjected to a system that doesn’t take into consideration the reality of how women are treated in society in general.

Given that, the amendment that you put forth on behalf of the government and that has been accepted by the government does a number of things. It looks at a sunset clause in the context of three years, but regardless of what that will ultimately result in, whether it goes back to the military justice system or stays in the civilian system, the fundamental part of this recommendation in the resolution is that the government must collect the appropriate data. The data should reveal whether or not the system is working.

Do you have confidence that we will get the data that is required in the amendment? Do you have confidence that within three years — which is the time frame in which this sunset clause will take effect, if it is to be acted on — we’ll have the opportunity to review that and debate it as parliamentarians to ensure that women who have experienced sexual misconduct in the military will be properly served in the way that they are expecting to be served and in the way that was intended by Justice Arbour?

Just to be really clear, it is not a sunset clause. It is a repeal rather than a sunset clause. I hope that is okay to say. I just wanted to state it for the record.

It’s women and men and people of all genders who are impacted by Criminal Code sexual offences. We learned that from previous studies from Statistics Canada. Incidence-wise, there are probably more men impacted, but precedent-wise, just like in civilian society, it happens more often to people who identify as women or other minorities. I just wanted to be clear on the record about that.

Do I think that the clause and the data collection will happen? I think that if this bill is passed into law, in regard to data collection, there are pieces of data everywhere, which we heard through a lot of witness testimony. We also heard through the minister that within the department, there is some direction on getting performance measurement frameworks designed in order to do that. That is my hope. Again, I don’t have any say over that.

It takes more than one data point to show whether something works or not. It takes qualitative and quantitative data over time. That includes all components of the military system.

My hope would be: In order for this to be successful, decisions on what data to collect and how to collect it must happen sooner rather than later.

Would the senator take another question?

Yes.

Thank you to all involved in this important piece of legislation. My question revolves around the uniqueness that you have outlined regarding our military in terms of its hierarchy, order, structure and areas of deployment, whether that be within Canada or internationally.

My colleague just raised some good points about how women have been treated in the military system. What changes would make them better treated or more fairly treated in a civilian system when the civilian system may not be familiar with the challenges of a hierarchical society?

There are a lot of policy issues I am not familiar with. I can go back to witness testimony and talk about what is in the bill and what has already been enacted through previous iterations, like Bill C-77. The victim support — which is applied by the military — will follow them into the civilian system.

Furthermore, when it comes to understanding the military environment, we certainly heard some testimony from a witness — I think she is a chief of police, and she is in Victoria right now, but she has a national perspective as well — that from a policing perspective, they will still need to rely on the military to help them acculturate. That also means the transfer of information between the two groups so that people’s cases don’t fall through loopholes.

There is currently a memorandum of understanding, or MOU, between the Ontario Provincial Police and the Canadian Armed Forces military police, and it covers things like information sharing. Some of the work is under way because it has been under way since 2021. They are looking to get broad MOUs across the country so that all people are supported. There is not only personal support but also support through the system so that their cases don’t fall through loopholes.

I will allude to Senator Batters’ comments here: What about this? Why wouldn’t we listen to them? As I told you, the choice that did exist has been gone since 2021. Victims of Criminal Code sexual offences are not able to choose the system that their case goes through. The prosecutor chooses the system. The military option has not been available. This was one of the questions that came up in committee, and the Deputy Judge Advocate General stated one of the challenges right now is that if you take something out of one system, those resources tend to go somewhere else and so does the expertise in that area.

We may ask, “Why aren’t we letting people choose now?” One of the challenges with that is you risk delaying when you start moving cases back and forth between systems. All the fabulous legal people in here will talk about Jordan’s Principle and how these cases never actually make it to trial. Having one system to go to allows us to have amplified victim support services because of what the Canadian Armed Forces or the Department of National Defence provides.

Also, when you go to the civilian system, you are less likely to have cases dropped or time delays with the transfer of services. That was not exactly an answer to your question, but you can certainly ask a follow-up if I have missed anything.

Yes.

You have asked a number of questions that I am not able to respond to because they are held within the Department of National Defence and are slightly outside of the bill, but I do understand the context of what you are asking.

I would be very hesitant to use the word “guarantee.” You talked about the supports following wherever they go. To your point, the civilian justice system, like the military justice system, has its challenges, with work being done on both the police and justice system, depending on the province, to try and improve the support provided to people who have been victimized. So that is acknowledged.

That is why having data for members of the Canadian Armed Forces who are impacted by this is critical.

Can I please request that you just clarify your question about accountability? I took a few notes, but I don’t think I caught the nuance exactly.

Senator McPhedran, the time allotted for your speech has expired. Are you asking for five more minutes?

Is leave granted, honourable senators?

Thank you very much, Senator McPhedran. When it comes to the victims, from what we were told in committee, that care follows them. They remain members of the Canadian Armed Forces. They have access to care. They have their victim liaison officer. They have their legal adviser paid for. That is what we were told through the centre that provides victim support. The funding is still there.

However, when you talk about the accused, because we have to talk about both in the military justice system, by moving all of these Criminal Code sexual offences to the civilian sector, legal defence counsel is no longer paid for. That is one benefit they lose. They will still have assisting officers assigned, according to the officials that came in from the Department of National Defence. However, I truly believe this is one of the items I will be asking about as we move forward.

As always, Senator McPhedran, that’s an excellent question. Again, this is not my area of expertise, and I understand words matter, especially in legislation. It is a good question that probably requires a follow-up. I want to thank you for bringing that up.

Senator Patterson, beyond what you said today, you have a military past like me. I served in the military, and I am also a criminal lawyer. Based on your military experience, if you don’t mind telling us about it, will this bill finally ensure that justice will be served in the many cases of sexual assault in the military, should jurisdiction over these cases be transferred to civilian courts?

Thank you for the question. It’s a good one. I will be honest with you: I cannot speculate. I would assume that justice will be served the same as for any other Canadian going through the same process. Justice will be served, as it is served for all Canadians.

Honourable senators, first, I would like to thank Senator Patterson for her ongoing commitment to this issue. Thanks to her work and perseverance, victims’ concerns have remained at the heart of our debates. I also want to thank the members of the committee and the witnesses who agreed to share their expertise and their sometimes very painful experiences. My colleagues and I were very touched by that.

As an honorary captain of the Canadian Coast Guard and honorary lieutenant-colonel of the Régiment de Maisonneuve, I have had the privilege of working with men and women who chose to serve our country. I admire their dedication so much. I also have a great deal of respect for the sacrifices that they and their families make.

That is why I sincerely believe that those who protect us deserve protection in return. That is basically the question that is put before us today with Bill C-11.

Over the past few days, our committee has heard from survivors, veterans, police officers, and legal and other experts who share the same objective: to better protect members of the Canadian Armed Forces who are victims of sexual offences. However, many of them have different ideas about how best to achieve this. That is what makes this debate especially difficult.

On one hand, we cannot ignore the findings that led to this reform. For more than a decade, report after report and inquiry after inquiry have exposed a profound crisis of confidence within the Canadian Armed Forces. The Deschênes, Fish and Arbour reports were not commissioned without reason; they reflect a painful reality. Too many victims have felt that the very mechanisms intended to protect them were not meeting their needs.

With Bill C-11, the government has chosen to implement the central recommendation of the 2022 Arbour report, which is to remove Criminal Code sexual offences committed in Canada from the military justice system and place them exclusively under civilian jurisdiction.

This is a significant decision, but it is also clear that it does not command unanimous support.

What struck me most during the meetings was that a lot of reservations about the bill were coming from parties that are usually on opposite sides of the legal system.

Survivors, military police representatives, military prosecutors and defence lawyers were raising similar concerns, for different reasons, over the mandatory transfer of these cases to the civilian system.

When people who usually sit on opposite sides of a hearing room have certain concerns in common, Parliament has a duty to listen carefully.

This meeting of minds did not mean that they opposed the bill’s objectives. It just meant that they were worried that certain consequences might not have been weighed carefully enough.

A number of witnesses reminded us that sexual assault is fundamentally a loss of control and that recovery often involves reclaiming autonomy.

Some have raised concerns that this reform could leave victims with the impression that important decisions are being made on their behalf rather than with them.

Others have drawn our attention to a particular dimension of the military context. When sexual misconduct is tied to an abuse of power, the issue is not limited to assessing whether a criminal offence has been committed. It also raises broader questions of leadership, authority, responsibility and institutional accountability.

The testimonies have also reminded us that victims are not a uniform group. They do not all share the same experiences, expectations or needs.

Some believe that transferring these cases to the civilian system is essential to rebuilding trust. Others would have preferred to retain the ability to choose.

I understand those concerns. I also understand the concerns raised about the civilian system’s capacity to take on these cases. Several witnesses pointed to court delays, limited resources and the challenges already encountered in the handling of civilian sexual assault cases.

Some questioned whether we risk shifting the problem rather than resolving it. Indeed, the committee’s discussions and the closed votes that followed reflect the tension surrounding this bill. Only a few senators approached this study with absolute certainty. The committee’s deliberation showed that it is possible to share the same commitment to better protecting victims while differing on the best way to achieve that goal.

It is in this context that I consider the adoption of Senator Batters’ amendment particularly important.

This amendment requires an independent review to be conducted within three years of the reform coming into force. This review must be the subject of a report to Parliament and be informed by consultations with victims, military and civilian justice system authorities and advocacy groups.

In short, this amendment establishes an oversight and accountability system so that Parliament can judge, based on facts and concrete results, whether this reform is achieving its intended goals.

This amendment reflects a kind of legislative humility, a recognition that intentions, however laudable, are not enough and that the actual consequences must be measured.

Now that the study is done, I’m not convinced that maintaining the status quo is a fitting response.

For several years now, military authorities have been gradually transferring these cases to civilian authorities. This approach is therefore not entirely new. The bill essentially enshrines in law a practice that’s already in place.

Above all, I believe we must recognize a fundamental reality: When an institution loses the trust of those it serves, rebuilding that trust sometimes requires profound change. It is not enough to say that things have improved. We must also ensure that the mechanisms in place inspire confidence among those who may one day need to rely on them.

It is in that spirit that I will vote in favour of this bill. I do so, however, without triumphalism and without claiming that this reform addresses every concern that has been raised before us.

Transferring jurisdiction to the civilian system is not enough on its own to resolve the problems with the organizational culture. It will not replace the need to properly train investigators, prosecutors and judges on how to deal with trauma victims. It will also not replace the Canadian Armed Forces’ obligation to continue the efforts it has been making over the past few years to change the culture.

Most importantly, it will not relieve us of the duty to closely monitor the results of this reform.

Several witnesses urged us to measure the real-world impact of the proposed changes. I believe they are right. We will need to determine whether victims have greater confidence in the system. We will need to assess whether the results truly reflect the objectives we are seeking to achieve. In other words, we must be prepared to judge this reform by its results and not simply by its intentions.

There is another lesson I take from our hearings. Time and again, witnesses reminded us that support for victims does not begin at trial or end with the verdict. Judicial proceedings matter, but they are only one part of the journey. Support services, access to medical care, protection from retaliation, the ability to pursue a career and the opportunity to rebuild one’s life are equally essential and must also be taken into account.

The real test of this reform will not just be to see where these cases are heard. It will be to find out whether the people who are going through such ordeals feel more respected, supported and heard than they did before.

If they do, then we will be able to say that we have made real progress.

Thank you. Meegwetch.

Honourable senators, I rise today in my role as critic at third reading of Bill C-11, the military justice system modernization act.

Allow me to start with a bit of context and some general comments.

Among the objectives of Bill C-11, one is particularly important: to remove the court martial’s jurisdiction to try certain offences of a sexual nature under the Criminal Code that are alleged to have been committed in Canada.

I can sum up the reasons given by the minister and his team: Former Justice Arbour recommended it. “Why are you doing this?” “Former Justice Arbour recommended it.” That’s the only reason I ever heard from the people in charge.

We did hear some deeply moving testimony from victims and military and academic experts. For victims, speaking out about such traumatic experiences takes enormous courage. I would like to personally express my profound gratitude to them.

Their testimony reminds us of one essential thing. Our decisions as lawmakers have a direct impact on the essence of personhood: one’s rights, one’s health and one’s healing process. The ability to choose between pursuing a complaint in the civilian or military justice system is crucial to remedying the harm survivors have endured.

While I recognize that the bill contains some positive elements overall, I have a major concern about clauses 7 and 8.

Clause 7 grants exclusive jurisdiction over offences of a sexual nature to the civilian justice system. The testimony we heard about this clause is unequivocal.

I will begin by sharing some of the evidence we heard from the Honourable Marie Deschamps, who led the review. The title of her 2015 report was External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces. Ms. Deschamps is a former justice of the Supreme Court of Canada. She served for 12 years on the Supreme Court and 10 years on the Quebec Court of Appeal. She is one of the most respected jurists in the country.

She pointed out that the position set out in her report differed from that of Justice Arbour. She was clear. She recommended that victims be allowed to choose which justice system would be responsible for handling their complaint.

She also warned against the effects of transferring jurisdiction exclusively. She said:

Many cases of misconduct fall at the lower end of the severity scale and are unlikely to be prosecuted in civilian courts. Such impunity can have harmful consequences. Unpunished minor assaults create a sense of invulnerability, and this acts as a springboard for more serious assaults.

I therefore continue to believe that a complete transfer is not desirable. In a context where the Armed Forces wish to take action to improve the human environment and punish inappropriate behaviour, the likelihood of intervention by the Canadian Armed Forces is greater than it would be if the civilian justice system alone had jurisdiction.

In other words, certain types of conduct may no longer be punished, and this has direct consequences for the victims. Another argument put forward to justify this transfer is the loss of confidence in the military justice system.

However, retired Lieutenant-Colonel Rory Fowler raised a significant contradiction at the National Security and Defence Committee. He said:

A basis of the proposed legislation is that military justice actors — military judges, prosecutors, defence counsel and military police — do not perform their functions adequately. So, their jurisdiction, supposedly, must be removed from such allegations arising in Canada. However, they will retain jurisdiction over the same types of allegations when they arise outside Canada but will perform those functions with markedly reduced experience and exposure to such offences.

How will that improve military justice and confidence in military leadership? The answer is it won’t.

I fully endorse these comments, and I also see a deep dichotomy in them. In other words, the military system retains jurisdiction abroad, but not in Canada. It has our trust for one thing, but not for another. In my opinion, this sends a message that’s hard to defend. We also have to consider the impact on Armed Forces members. Colonel Nooral Ahmed, Director of Defence Counsel Services, testified that this change will have a real effect on the right of accused military personnel to make full answer and defence. He said:

I will focus my remarks today on one issue: Transferring Criminal Code sexual offences to the civilian system will have a negative impact on CAF members charged with those offences because they will no longer have the right to receive legal representation at no cost.

He also pointed out that access to free legal representation is a principle recognized in the reports of Justices Fish and Arbour:

Justice Fish, in his independent review of 2021, recognized that access to free legal counsel is a fundamental benefit extended to CAF members in recognition of the extraordinary obligations of military service, including the principle of unlimited liability.

This bill would take rights away from members of our military.

Colonel Dylan Kerr, Director of Military Prosecutions, also testified in support of allowing the military justice system to retain jurisdiction. He said:

. . . I do believe that victims and the Canadian Armed Forces would be better served by retaining concurrent jurisdiction over these offences, that victims deserve a say in where their cases are heard and that some cases will not be heard if jurisdiction is removed.

More tools to address sexual violence are better than less.

I will now move on to clause 8 of the bill. It removes the Canadian Armed Forces’ jurisdiction to investigate offences in Canada.

Brigadier-General Vanessa Hanrahan, Canadian Forces Provost Marshal — for the uninitiated, I learned that the Provost Marshal is the head of the military police — rightly reminded us of the context in which members of the Armed Forces live and their bond of trust with the military police. She stated:

Over the last few years, we have seen an increase in the number of victims requesting their files remain with the military police. I certainly do not want to speak on behalf of victims, but some of the reasons they have come forward is because — again, as I alluded to in my opening comments — the military police have spent a lot of time investing in our community. They have trust and confidence in the military police. We are members of the Canadian Armed Forces, though we act independently from the chain of command in our policing function. We understand better the way of life. We understand how to work on a base. We understand the intricacies of rank. We understand what it is to live in a mess environment and how it is to operate in all facets of being in the Canadian Armed Forces, while ensuring we can reach the elements of an offence and have a proper investigation that would allow us to look at all the elements being brought forward and determine whether a military justice system or a civilian justice system is best offered the victim justice, or the option of justice.

In other words, the military justice system has an in-depth understanding of the environment that is difficult to find anywhere else, so that is another aspect of the bill that I can’t support.

There is also the matter of the civilian system’s capacity. According to the testimony of police chief Fiona Wilson, who spoke on behalf of the Canadian Association of Chiefs of Police, law enforcement agencies are not ready to take on these investigations. She said:

From the onset, police have advised that we could not assume responsibility for these investigations without additional resources. File counts significantly understate the real workload.

She went on to say:

CAF-related files can be particularly complex. Witnesses and evidence may be located in different countries or provinces. Relevant information may sit within military systems. . . .

Taking on these files without additional resources would require diverting investigators from existing sexual assault cases and other critical public-safety responsibilities. We were, and remain, clear that this would not be responsible policing.

That brings me to another important point. According to the Office of the Federal Ombudsperson for Victims of Crime, the justice system is already facing major challenges. Since the Jordan decision, over 268 sexual assault cases have been stayed because of unreasonable delays.

The proportion of cases exceeding these time limits has risen significantly over the years. At this point, approximately one in seven cases is stayed or withdrawn for this reason.

As such, can we reasonably expect that transferring more cases to that system will have no consequences? I will let you judge for yourselves.

I would remind you that, in 2020, a panel of experts in Quebec produced a report entitled Rebuilding Trust. The panel made 190 recommendations for fixing the justice system and handling cases of a sexual nature properly.

Lastly, let us consider the victims’ perspective. We listened to them. If I had to sum up their message in one word, that word would be “choice.” I’m talking about their ability to choose the system, choose the process and actually choose the system they trust to properly address their complaint.

In my view, to ignore that message would be to fail to do justice to the extraordinary courage these victims have shown. In their testimony, some of them emphasized specific points. Retired captain Hélène Le Scelleur highlighted a major disconnect between legal frameworks and lived experience. She said:

While civilian courts may determine criminal responsibility, they are not positioned to examine the day-to-day exercise of military authority in operational environments. For some victims, including myself, those realities cannot easily be separated.

Another witness who comes to mind is retired major Donna Van Leusden. I asked her about the impact on victims of staying proceedings under Jordan, and her response was striking. She said:

This is a truly terrible outcome for victims because they’ve shown such courage in talking about what happened. I know two people who, because of Jordan —

— their files fell apart, and as a result, the consequences were devastating.

I do my best with the people that I’m supporting through the system to reinforce that “not guilty” is not the same as innocent, that not guilty doesn’t mean that it didn’t happen. Even so, there are so many survivors that depend on that and think that having that moment in court is going to make a huge difference in their healing. For some of them, it does. So to have it just fall apart because paperwork wasn’t filed in time or because they couldn’t find room on a calendar is so devastating because, again, now they are in limbo. They haven’t gotten a formal declaration of guilty or not guilty. Nothing has happened, and it just sort of goes away.

The two I know are both struggling, and I don’t see them coming around to any sort of meaningful recovery for some time as a result of that. . . .

Based on the testimony we heard, it became clear to me that the current version is not an adequate response to the reality on the ground. I have never seen anything like it. Prosecutors, defence lawyers, the head of the military police, the Canadian Association of Chiefs of Police, victims and survivors all want to maintain the military system alongside the civilian system. I have never seen such broad unanimity against a government bill.

Faced with such a united front, I had no alternative but to propose a specific amendment to clause 7. The purpose was simple: to maintain the exclusive jurisdiction of the civilian system, but to allow for one fundamental exception permitting victims to choose the investigator and the legal forum, either civilian or military. This allowed the bill to pursue its main objective, namely the implementation of recommendation 5 of Justice Arbour’s Report of the Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces, while allowing room for some essential flexibility. The rule remains, but an exception was added.

This is not an isolated amendment. It is the same one that was moved by the Conservative Party of Canada in the other place and adopted in connection with the third report of the Standing Committee on National Defence. One unusual and noteworthy fact is that the Bloc Québécois and the NDP also supported this amendment. I will let you draw your own conclusions. The members of our committee defeated the amendment in a tie vote of seven to seven.

In conclusion, honourable senators, I cannot support this bill, as it runs counter to much of the evidence we have heard, particularly with regard to clauses 7 and 8. Of course I supported Senator Patterson’s amendment because, if the bill passes, at least that commitment will be in place.

However, I have been here for 17 years now, and I have seen countless commitments, reviews and promises to revisit a bill after three or five years that have not been kept. The list is long, and I plan to do some research over the summer to find out exactly how many there are, but I know there are many. I don’t trust these kinds of commitments to revisit the issue if it comes up again four, five, six or seven years later and say that we were wrong. What was the cost of being wrong? How much damage was done and to whom, to how many people, to how many survivors?

I don’t believe that victims of sexual offences should be asked to serve as guinea pigs for four or five years. I therefore urge you to vote against the bill in order to send a clear message to the other place and to the government that it would be wise to review certain aspects of it immediately, while keeping the option I mentioned. Thank you.

Are honourable senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed

The Hon. the Speaker pro tempore: All those in favour of the motion will please say “yea.”

Some Hon. Senators: Yea.

The Hon. the Speaker pro tempore: All those opposed to the motion will please say “nay.”

Some Hon. Senators: Nay.

The Hon. the Speaker pro tempore: In my opinion the “yeas” have it.