Military Justice System Modernization Bill

Moved second reading of Bill C-11, An Act to amend the National Defence Act and other Acts.

She said: Honourable senators, I rise today to speak to Bill C-11, An Act to Amend the National Defence Act and other Acts, better known by its short title, “Military Justice System Modernization Act.”

Before I address this bill, I would like to take a moment to share what I believe our role is in debating legislation at second reading. But before I say that, I would like to thank my fellow senators for giving me a chance to speak at second reading before you have had the technical briefing, and I hope that this speech will help shape how you listen to the technical briefing tomorrow.

Second, debate at second reading is not just a question of referral to committee for further study. This is our opportunity as senators to debate the merits and the principles of the bill before us. After all, if we as a chamber cannot support the merits and principles of the bill, then why would we send it to committee?

I hope that by the end of my remarks today, colleagues will agree that the principles of Bill C-11 have merit and that it is worth further study in committee. As such, I will address the principle of Bill C-11, which is the modernization of the military justice system in Canada.

Colleagues have heard me speak repeatedly on the Canadian Armed Forces, or the CAF — I will use “CAF” to save time — because the CAF is more analogous to a province. It has its own health system, its own education system, its own employment system and the part that I will be expanding on: its own justice system.

The CAF is not simply part of the government, and members of the CAF are not public servants. Yes, they serve Canada, but they are not public servants. I would like to reinforce that idea in all of your minds as I speak about Bill C-11 and as you think about the impacts on members of the Canadian Armed Forces.

An independent and separate military justice system is essential to the Canadian Armed Forces to maintain discipline, efficiency and morale. The CAF is the only institution in Canada — and exists as a tool of the state — to manage and engage in violence on behalf of Canadians. Left unchecked or undisciplined, the threat or the use of violence against people would be disastrous.

In a democracy, the military must be subject to proper civilian control. In Canada, authority for command, control and, ultimately, discipline of and over the Canadian Armed Forces flows from the Crown through to the government of the day. To ensure that discipline, the Canadian Armed Forces operates a military justice system that is unique and separate from the civilian justice system in Canada.

This separate and unique system is recognized by the Supreme Court of Canada as necessary to meet the needs of the Canadian Armed Forces.

In R v. Généreux, in 1982 — but there have been further cases since then — the Supreme Court said:

The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threats to the nation’s security. To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct. As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs. In addition, special service tribunals, rather than the ordinary courts, have been given jurisdiction to punish breaches of the Code of Service Discipline. Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. There is thus a need for separate tribunals to enforce special disciplinary standards in the military. . . .

Colleagues, discipline for the sake of control is not the only reason that the CAF is subject to the high standards of good order and discipline. It is also a matter of trust.

As I said, members of the CAF are not public servants. Members of the CAF assume military status and operate in a unique work environment. As lawful combatants, they are legitimate targets in a theatre of operations. They have what is referred to as unlimited liability.

The chain of command may order members of the Canadian Armed Forces into danger, to operate under fire or the threat of other violence and to respond in kind if necessary. No civilian employer in Canada can ask that of their employees.

Members of the CAF need to trust their fellow sailors, soldiers and aviators to have the discipline to carry out such orders, but they also need to know that their teammates have their backs, whether that is as part of a fire team in the hot desert, sailing the South China Sea or conducting combat air patrols over Eastern Europe. The CAF needs to operate as a cohesive team with the necessary discipline to carry out the mission as ordered and, normally, in the most dire of circumstances.

Further, CAF members also need to trust the system. They need to know that their fellow members are subject to the military justice system and that the system operates equitably for all members.

This is what brings me to Bill C-11.

All institutions evolve and modernize, including the military justice system and the CAF writ large. Part of the evolution of the military justice system, as recognized by the Supreme Court in R. v. Edwards in 2024, was a move away from a command-centric system — meaning the chain of command — to a parallel system similar to that found in the civilian world. This is because, at the end of the day, members of the CAF are Canadians like all of us. They share the same constitutional framework, including the Charter, as we do, even with some restrictions owing to their military status and the concept of unlimited liability.

Colleagues, in some ways the National Defence Act operates like a quasi constitution for the Canadian Armed Forces. Within it is contained the authority for the CAF to operate its own military justice system, administered by the Judge Advocate General, with military prosecutors and defence counsel. The act also authorizes a separate military police system, all of which are touched on in Bill C-11.

The National Defence Act, since 1998 and the recommendations made by the Somalia inquiry, has been subject to regular statutory judicial reviews, originally done every five years, now every seven years. The first took place in 2003, led by Justice Lamer, and the third and most recent, by Justice Morris Fish, was released in 2021. Much of what is contained in Bill C-11 flows from the judicial review undertaken by Justice Fish, who looked at the entire military justice system. He made over 100 recommendations. The majority of his recommendations dealt with the military justice system, including how issues of sexual misconduct are addressed, military policing and police oversight.

Separate from these reviews required by the National Defence Act, there have been other independent reviews and audits regarding sexual misconduct in the Canadian Armed Forces. These include parliamentary committee studies undertaken by committees in both chambers, the 2015 independent review by Justice Deschamps, as requested by the Minister of National Defence, and a performance audit done by the Office of the Auditor General in 2018 in response to Justice Deschamps’ report.

Most recently, in 2022, former Justice Arbour released her independent review report examining the culture of sexual misconduct in the Canadian Armed Forces. Justice Arbour undertook an independent review of the CAF at the request of the Minister of National Defence. The name of the report is the Report of the Independent External Comprehensive Review on sexual misconduct — I had to say that many times in the past — and she brought forward 48 recommendations, including one that requires amendments to the National Defence Act and is found in Bill C-11.

Let me now turn to what modernizations to the military justice system in Canada are contained in Bill C-11.

Overall, Bill C-11 seeks to modernize the military justice system in line with recent changes to the civilian justice system and best practices of ensuring the independence of the judiciary. It also makes changes that are unique to the military justice system.

Notably, it formalizes the transfer of Criminal Code sexual offences committed in Canada to the civilian justice system. However, Criminal Code offences alleged to have taken place outside of Canada on operations will continue to be under the jurisdiction of the military justice system and police.

In response to the 2021 independent review by Justice Fish, Bill C-11 changes the appointment process for the Director of Military Prosecutions and the Director of Defence Counsel Services. The Director of Military Prosecutions will be patterned after the civilian system’s Director of Public Prosecutions. They are federal appointees. They will now be appointed by the Governor-in-Council rather than the Minister of National Defence, thereby enforcing independence. They will be eligible to serve a non-renewable term of seven years, and they will serve that term subject to good behaviour. While no comparable civilian position exists, the Director of Defence Counsel Services will also be appointed in a similar manner and will be subject to the same tenure as the Director of Military Prosecutions.

Bill C-11 also implements recommendations made by Justice Fish as they relate to the Canadian Forces Provost Marshal. The Provost Marshal will be restyled as the Provost Marshal General of Canada. Yes, it does make a difference, and it requires legislation. It means that they will hold a rank that is not less than a Brigadier-General. The post will be a Governor-in-Council appointment serving a four-year term at their pleasure with the option to be renewed. For context, colleagues, the Provost Marshal General is akin to the Commissioner of the RCMP and is the head of the Canadian Military Police.

These changes reflect a move toward more independence within these positions as part of the broader operation and administration of military justice. By moving the appointment power from the Minister of National Defence to the Governor-in-Council, it raises the status and increases the independence of the position. By making all three posts directly responsible to the minister as opposed to the Judge Advocate General, it reinforces the independent role of each player in the military justice system in Canada.

Another section of Bill C-11 undertaken in response to Justice Fish’s report relates to the class of persons who may be appointed as a military judge. Currently, only military officers are eligible for these federally appointed judicial positions. Bill C-11 will expand this to include non-commissioned members, meaning non-officers, of the Canadian Armed Forces, or CAF. This will expand the pool to potentially include those civilian members of the legal community who concurrently serve as reservists. That is because we do have lawyers and judges who drive trucks as reservists in their day jobs, but that does not take away who they are and the professionalism they bring to the table.

Bill C-11 also expands the class of persons who may make interference complaints to the Military Police Complaints Commission and requires military police, or those serving in such a capacity, to make complaints in certain circumstances. This is in alignment with the civilian justice system. In expanding the potential pool of military judges and those who can report interference, the military justice system expands as well and becomes more adaptable to the broader CAF community.

Colleagues, much of the attention regarding the debate on Bill C-11 has focused on the independent review performed by Justice Arbour. As I mentioned previously, her report contained 48 recommendations, only one of which requires legislative changes. Since 2015, Canadians have been confronted with deeply troubling accounts from members of our armed forces: accounts of misconduct, harassment, abuse and, perhaps most concerning of all, silence. Unfortunately, these are not isolated incidents. To its great credit, the Canadian Armed Forces chose to confront these issues directly.

Justice Arbour’s report did not simply diagnose the problem; it laid out a clear and actionable path forward. The government accepted all of Justice Arbour’s recommendations in full, and they made a promise to Canadians and to CAF members that we would implement them all in due course.

That’s going to bring us back to Bill C-11 and the one recommendation that requires legislative change, and it is called recommendation 5. Now, recommendation 5 is clear.

Allow me to quote directly from the report:

Criminal Code sexual offences should be removed from the jurisdiction of the CAF. They should be prosecuted exclusively in civilian criminal courts in all cases.

Some of you may ask, “Is this not the practice already?” The answer is yes — sort of.

Since December 2021, at the direction of the Director of Military Prosecutions, investigations of potential Criminal Code sexual offences committed by CAF members in Canada have been referred to civilian authorities. This excludes alleged Criminal Code sexual offences committed by CAF members outside of Canada, and you will hear me coming back to that. They still remain subject to the military justice system.

Bill C-11 would codify this interim directive in law, within the National Defence Act, with one small adjustment. But the Canadian Forces Provost Marshal and Military Police continue to have jurisdiction over all CAF members even in regard to Criminal Code sexual offences outside of Canada. At this moment, that jurisdiction remains with the Military Police. The difference between what has been going on since 2021 and what will happen once this bill comes into force is that Bill C-11 will remove the concurrent jurisdiction of the Military Police, clearly placing responsibility and authority in the hands of Canadian civilian authorities.

Why is enshrining an already existing practice in law important? After all, the interim directive seems to be working. The answer is because, like the Senate and formal changes to our Rules, to modernize the military justice system, those serving Canadian Armed Forces members need to know that there will be fairness and consistency in their military justice system. In short, they need to trust the system regardless of the people sitting in the seat.

Continually relying on interim directions or practices can work, but they may not be consistently applied, and they are not necessarily fair. Consistency and fairness, like independence, are cornerstones of the justice system, particularly the military justice system.

As I said, this section of Bill C-11 received most of the attention when the bill was debated and studied in the other place. Many questioned whether or not the Military Police should maintain concurrent jurisdiction and allow victims the right to choose which justice system they wish to use. This risks creating a two-tiered justice system. To give you an analogy, it is very challenging to have two trains running on one track at the same time.

There are also questions about the ability of the accused to adequately face charges if they do not know which system they are entering. CAF members serve across Canada in almost every province and territory, and a new posting may take one member from Newfoundland and Labrador to British Columbia. These great distances may prove a burden to access justice — absolutely for the victim, but also for the accused.

If we adopt the bill at second reading, it is my sincere wish that the committee to which it is referred examine the second and third order of consequences of this transfer and that we study the matter deeply to make sure that, above all else, we are not causing more harm.

One amendment made at committee in the other place that is not yet contained in the bill that has been sent to us is a sunset clause for recommendation 5. I hope that the committee receiving this bill will also take time to study that sunset clause and consider whether it is something we wish to introduce again.

I would also like to note that, in Question Period recently in the other place, the Minister of National Defence indicated some support for the reinsertion of the sunset clause regarding the removal of military justice jurisdiction over Criminal Code sexual offence violations in Canada. I hope that the Senate committee to which Bill C-11 may be referred will examine this issue in depth.

There are many people who have been harmed in this system watching this, and they are watching it closely. We owe it to them to engage in that sober second thought that we are so good at.

Colleagues, before concluding, there are other elements of Bill C-11 that do not tie back directly to the work done by Justice Fish and Justice Arbour. These are updates to the military justice system that flow from recent changes and modernization of the civilian justice system. We have passed a number of bills relating to such changes since I have been in the Senate. Namely, they update the National Defence Act to reflect amendments made to the Criminal Code in Bill S-12 from the last Parliament relating to the Sex Offender Information Registration Act and the International Transfer of Offenders Act.

These changes will bring the National Defence Act in compliance with these acts and be consistent with the Charter of Rights and Freedoms.

Outside of the above provisions, there are sections of Bill C-11 that amend the National Defence Act as it relates to military justice in Canada, such as excluding military judges from the summary hearing system.

Bill C-11 also expands access to victim’s liaison officers, or VLOs, to include persons acting on behalf of victims.

To conclude, at its core, Bill C-11 modernizes the military justice system to make it more fair, more transparent and more aligned with the values that Canadians expect from their institutions and certainly from their Canadian Armed Forces.

It is about creating an environment where every member of the Canadian Armed Forces — regardless of rank, gender or background — can serve with dignity and respect, and they will all receive justice.

And while legislation cannot change culture in and of itself, culture will be positively affected by this legislation.

Ongoing Canadian Armed Forces culture change efforts are what makes this bill possible and attainable. This bill is about modernizing the military justice system and codifying existing practices in law so that Canadian Armed Forces members can have confidence in the credibility of the system — a system that they can trust.

Permit me now to speak to those who serve and have served in the Canadian Armed Forces and their families.

Bill C-11 is but a small component of the work done to modernize the Canadian Armed Forces in recent years. We have seen historic investments in capabilities, equipment, infrastructure and people. And in an ever-increasingly conflicted world, that is needed and that is what you deserve.

But at the heart of the Canadian Armed Forces are you, the people.

Parliament has an opportunity with this bill to bolster confidence in the military justice system, ensuring a system that is fair, modern and worthy of members’ trust.

We must ensure all the work that the Canadian Armed Forces has done to date and the progress it has made in changing the culture to make it more inclusive and fair is not a temporary thing but lasting.

It has been said that militaries are a reflection of the society they serve to protect. But we must always remember that those who serve in the Canadian Armed Forces are Canadians. Their values are not a reflection of broader Canadian values because they are our fellow Canadians. They share our values. They are us.

Lastly, my fellow senators, if you, like me, feel that the military justice system is worthy of modernization, I ask you to adopt Bill C-11 at second reading as a step in that modernization process. Thank you.

Yes.

Senator Downe, that is a critical question that we do ask at committee. It was of concern in the other place as well. As the sponsor of this bill, I will commit to making sure that we delve into that and provide a fulsome response as to why this was the selection made.

Yes.

I actually think that is a pivotal question. When the Canadian Armed Forces serve elsewhere in the world, there are other jurisdictional challenges, as well as jurisdictional challenges within Canada. There are two components to this. There is the investigative phase: When it impacts a Canadian, that is one of the key roles of military police. It is for the Canadian Armed Forces overseas. From an investigation perspective, it ensures that when we talk about justice seen to be served, the investigation is done. It remains with the military police because realistically they will collaborate with the jurisdiction of choice, but it remains there. On the prosecution side, I had the same question: How does this work?

We think of Latvia as our primary theatre of operations. This has to be a change that is enduring and can be measured up against environments that are not like Latvia. Right now, as they look at how to manage something like two Canadians involved in a potential criminal sexual offence, there are directives that help decide where it is best to prosecute it based on the complexity of the case and the investigation. There may be times when it does come back to a Canadian civilian jurisdiction. Otherwise, the court martial capability remains for that incident only.

Thank you, Senator Batters. I think that will be part of our deep dive when we do the study on this so that we actually get some transparency on it. I am skating around the question on this right now, and this is where I separate my former life from my current life. When we talked about having a choice, again, it is about doing justice in the right jurisdiction based on all the challenges in the law. What needs to happen is that people who have been victimized by criminal sexual behaviour must be supported, and they must have representation, which includes access to lawyers. What I will say is that this point, in particular, is worth a very good deep dive and study to help us understand completely why it is.

Regarding your sunset clause component, that was one of the areas that was talked about. We have never had this. There has been talk: This is like going back to 1998 when jurisdiction came to the Canadian Armed Forces or it is just like 2021. As those of you who are in the legal or policing profession know, it is a continuous chain. What has changed now is that you’re taking the military police concurrent jurisdiction out of the act.

I think it would benefit from having a sunset clause to make sure that what we are doing and passing into law does no further harm above all else.

I obviously don’t know exactly what they were thinking. But the one thing I can tell you is that Ms. Arbour met with many victims of this behaviour during the development of this report, and it was her conclusion that this was not in their best interest.

I have heard some interesting comments about them not being able to make the decision, but I reject that. I don’t believe that is the case. The part that does come solid is that it’s about the complexity and delays in the system and Jordan’s Principle. If you are flip-flopping from one system to another, we need to find out why that is.

It is about justice as well as taking into consideration what has happened to the harmed person. That is why we need to hear with our own ears what this means exactly from officials, other experts in civilian jurisdictions, as well as from people who have been harmed.

Absolutely.

Thank you for the question. This is information I don’t have at my fingertips right now. I can tell you that when Justice Arbour did her report — we know what the situation is in the civilian justice system for people harmed by criminal sexual behaviour. From her perspective, she concluded that the handling of sexual misconduct by the military justice system has eroded trust and morale amongst the organization.

This is why giving civilians exclusive jurisdiction will help rebuild trust in the military justice system. It’s kind of that two‑tiered thing. Going back to my earlier comment, each Canadian Armed Forces member is a Canadian who belongs to or is a Canadian taxpayer in a province. It is a very good question we can ask and get more depth on.

Yes.

There are mechanisms in the system in order to have reporting come back. Each year, the Judge Advocate General is responsible for submitting a report to the minister on this very issue. It’s the same with the military police, though their connection is lower. So the numbers are there. I think this is a report we should all see for ongoing monitoring. That’s the first part.

On the second part, I talked earlier about the independent review of the military justice system, as I said when I talked about Justice Fish. He put a focus on issues impacting sexual misconduct from policing and legal. This tool will still remain in the hands of the minister to determine, once this bill is passed, if he so chooses, to do another independent review . There can be internal things done, and there can be independent reviews as well.

Watching the numbers and making sure that, above all else, we are not causing more harm by what we are doing now will require some data to see what is happening.

And I do apologize. I missed one of your questions because I couldn’t find my pen to write it down.

I apologize for that. I knew this question was coming because it’s also important to me. The Government Representative’s Office, or GRO, is working with the minister’s team, and we will make sure that is made available. I don’t have the details on it, but we have been assured it has been done. We do want to see it.

To comment on precedents versus incidents, we know, with the data collected since 2015, that while only 12% to 16% — I will use gender here — of Canadian Armed Forces members are women, the precedents are much higher for them. If you broke that down, we know the intersections of identity also impact that. So collecting data must continue.

Second, the number of incidents is actually higher with the remaining population who identify as man or male. However, we don’t know what is unreported. I just wanted to add that on there.

Yes.

I will say two things. The best thing is for it never to have happened in the first place. This is why efforts that are not legislative in nature need to continue, and the work the Canadian Armed Forces is doing in finishing the implementation — this is the last recommendation to be implemented — is absolutely critical, and we need to support that. So, above all else, stop the harm.

But, second, when you talk about survivors — and we have many with great expertise in this area — I think it is quite important for us to at least understand trauma-informed communication, which is what we also expect in our justice system. Our job is not to squeeze out the story of what happened to them; it is asking them about the impact of what happened to them.

I strongly recommend we do some trauma-informed training before whichever committee ends up with this bill so that, when we have a panel of survivors, we don’t end up adding to the trauma they have already suffered by having them retell their story. Thank you for your question.

May I clarify something? Are you referring to people who have been victimized or the survivors?

I think that in the selection of people who have been harmed by sexual violence — because I will use the right word for this — we should make sure that the framework we have for them supports their being present in some way. If they need to take a breather, we take time and give them a chance to answer. We make sure that when we look for people to testify — because remember that this affects all genders; this is not a women’s issue — we must watch whether we have a mixed panel. We need to talk to the witnesses and make sure that we listen to what they need so they can be as forthcoming as they feel welcome to, and we need to make sure we also have supports, as needed, when they testify. If the testimony ends, then the testimony ends.

Thank you.

You’re looking at a qualitative and quantitative assessment of this. Does this need to be in legislation, or is this better served through directives or even regulation as to what needs to be included?

I will have to think about that, but I would suggest that in the legislation itself it would potentially be outside of what the bill is doing on the reporting because the two reports that I talked about are not included in this bill. These already exist as reporting requirements for the military justice and police systems. So, it would be somewhere in here, other than the report itself going to the minister.

I would, and I request more time to finish this question.

That is something I will get back to you about. You said it is one clause that is vague, and I think that will be an important question to have answered.