Moved third reading of Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts.
He said: Honourable senators, I am pleased to rise in this chamber today for the third reading of Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts.
I want to apologize at the outset. My speech last week on Bill C-59 was a model of brevity. I think I came in under five minutes. This one will not, but it’s a good speech so hang in there.
Let me begin by reminding you what the bill proposes to do.
Bill C-77 would close the gap between the military and civil justice systems by granting victims within the military justice system the same rights accorded victims within the civil justice system. It would also cure the injustice whereby persons charged with service offences may be subject to criminal prosecution without the benefit of the same procedural rights, including the right to counsel and a right of appeal, as those tried in a civil justice system. And it would introduce into the military justice system the identical sentencing provisions that we find in the civil justice system concerning the sentencing of Indigenous offenders and those convicted of offences motivated by bias and hate.
This bill is a very important bill for everyone who serves in the Canadian Armed Forces. It represents a significant step forward towards ensuring that every person involved in the military justice system is treated with trust, dignity and respect and enjoy the same rights as those in the civilian justice system.
Is the bill perfect? Of course not; no bill is. But it’s a good bill that deserves to be enacted into law.
This is especially true and important because attempts at legislative reform of our military justice system are not frequent; nor are they always successful, as previous attempts to reform our military justice system too often have died on the Order Paper.
The National Defence Act was comprehensively overhauled in 1998 by a bill that ushered in the current military justice system. From 2003 to 2011, three bills attempting to implement further reforms died on the Order Paper in successive governments, never making it beyond the House of Commons. Parliament was only able to adopt smaller bills, curing constitutional defects in specific provisions that had been struck down by the Court Martial Appeal Court. Finally, in 2013, Parliament passed the first comprehensive military justice bill in 15 years.
However, these reforms did not include any provisions for the rights of victims. In fact, the military justice system was explicitly excluded from the Canadian Victims Bill of Rights, which was introduced by the previous government in 2014 and passed by Parliament in April 2015. The sponsor of that bill, and its leading proponent, was Senator Boisvenu, the opposition critic on the bill now before us. But the rights of victims in the military had not been forgotten. The government of the day also introduced Bill C-71, a bill that would have introduced a declaration of victims’ rights into the military justice system. However, the bill was given first reading on June 15, 2015, only four sitting days before the Parliament rose for the federal election. I need hardly add that Bill C-71 did not make it past first reading.
This brings me to my final introductory point. At committee, many witnesses, notably those who spoke to the victims’ rights provisions, recommended amendments to improve the bill, and several such amendments were proposed during clause-by-clause consideration. In my opinion, many, if not indeed most of them, had considerable merit. They would have strengthened the bill, and they were supported by the opposition members on the committee.
I opposed each and every one of those amendments, and they were all defeated by the votes of ISG and independent Liberal senators on the committee. If you read the transcripts of the committee, we were accused of many things. We were accused of not caring about victims, of being in the Senate only to defend the government and of rendering the Senate useless by refusing to amend the bill. I have no doubt that you will hear a great deal about this when others take the floor on debate.
Honourable senators, I opposed the amendments not because they were without merit. On the contrary, under other circumstances they would have enjoyed my full and enthusiastic support, and I’m sure the support of all members of the committee. I opposed them because of the very real likelihood that, if amended in the Senate, Bill C-77 would die on the Order Paper. And every senator in this chamber knows this is so. There simply are not enough sitting days left in the other place to deal with all of the bills that the Senate has already amended, or like Bill C-69, is likely to send over with amendments, before the end of this Parliament.
Bill C-77 is an important bill, but it simply will not be given priority over many of the other bills that are already in the other place or that are anticipated to be received in the days to come. The result is that if Bill C-77 is amended, it will not pass. Indeed, the minister acknowledged the risk of the bill dying on the Order Paper Day when he was questioned on that point in committee by our colleague Senator McPhedran. And that is why I opposed the amendments, even though they were being recommended by credible witnesses and notwithstanding that they would have improved the bill. Honourable senators, better three quarters of a loaf than no loaf at all.
Although the amendments would have improved the bill, Bill C-77 is not a flawed bill as it stands; on the contrary, it’s a good bill. I will endeavour to explain why in the time that remains to me.
Let me begin by outlining the proposed changes to the summary trial process under Bill C-77.
In my speech at second reading, I underscored the unique nature of our military justice system, given that military personnel can be tried for Criminal Code offences and other federal offences, as well as offences unique to the Armed Forces. I also mentioned that charges can be handled either through the chain of command by summary trial or in an official court of independent military judges in a trial before a court martial.
Most service offences give rise to an election by the accused to be tried by a court martial, but for a discrete number of minor offences such as absence without leave or drunkenness, they are automatically dealt with by a summary trial. It is important to note that both courts martial and summary trials are penal proceedings where an accused is presumed innocent until proven guilty beyond all reasonable doubt. That is where any resemblance ends.
A summary trial, though penal in nature, does not afford the accused the same rights they would have been entitled to had they been tried in a court martial or even a civil court. Offenders do not have the right to legal counsel. The usual rules of evidence, including the hearsay rule, are more relaxed. There is no official transcript of the proceedings and no right to appeal.
Moreover, summary trials are no exception to the standard of a proper court martial trial. On the contrary, summary trials eliminate the possibility of election even if the chain of command is less and less satisfied. According to the Judge Advocate General’s reports, summary trials account for about 90 per cent of military trials and courts martial account for just 10 per cent.
Bill C-77 would completely eliminate summary trials. Henceforth, all service offences will be tried solely by court martial. Bill C-77 therefore proposes a new summary hearing system for less serious disciplinary offences defined as service infractions. Summary hearings are administrative in nature and are designed to enable the chain of command to address disciplinary and morale issues quickly and effectively.
This change is the product of consultations by the Office of the Judge Advocate General with the chain of command. It also responds to an issue of delay in the military justice system generally, and in the summary trial process in particular, an issue raised in the spring 2019 report of the Auditor General of Canada.
In committee, we heard from many witnesses in this regard, all of whom have considerable experience with the military justice system, and they did not agree with this amendment.
Far from it.
Some witnesses argued very strongly that this part of Bill C-77 should not be implemented because they did not think that there had been enough public debate on the matter. Others argued that the new summary hearing process still had some characteristics of a criminal hearing.
Witnesses indicated that the bill violates the rights of service personnel by taking away their right to choose a court martial rather than a summary hearing and by changing the standard of proof at the hearing from a criminal standard of proof to a civil standard of proof. These are serious criticisms from experts, including representatives of the Barreau du Québec and the Canadian Bar Association.
As a former member of both of those organizations, I took their testimony very seriously, as you can well imagine. I raised some of those concerns in my speech at second reading, and we may hear from some of those witnesses in the coming days, as well as from other witnesses who have just as much experience and are just as qualified who completely disagree with this amendment.
Michel Drapeau, a retired colonel and now a lawyer in private practice, was unequivocal in his support of Bill C-77 and in his condemnation of the current system of summary trials, as he stated in his testimony:
The current summary trial is unfair. When someone can be charged, no rules of evidence, hearsay is accepted, no right to counsel, you can be sent to jail for an extended period of time and you can have a criminal record — that is the system in place at the moment. . . . Bill C-77 has my full and unreserved support for the repeal of the existing summary trial system . . . I sincerely hope that it will receive Royal Assent before Parliament is dissolved.
On to the same effect was the testimony of his colleague Maître Joshua Juneau who stated:
As it concerns the summary hearing process, Bill C-77 should not only be assented to and put into force as soon as possible, but it should be celebrated.
Moreover, in their view, the proposed summary hearing process definitively was not penal in nature. The minister and officials confirmed that the objective is to create a non-criminal, non-penal administrative process to deal with relatively minor breaches of discipline. They reminded the committee that under the proposed summary hearing process, there is no criminal charge, no accused person, no criminal sanctions and no criminal record.
Speaking as someone who taught both constitutional law and the law of evidence for all the years that I was a full-time law professor, I was persuaded that they were correct in law. But just because a process is not criminal doesn’t necessarily mean that it’s fair.
One of the themes that preoccupied some members of the committee, myself included, was the extent to which many of the details of the proposed summary hearing process, including the definition of what would be considered a service infraction, were to be contained in regulations that were not yet drafted. I raised this issue both in my second reading speech and at committee. At the end of the day, however, I was satisfied by what I heard at committee.
I am satisfied that the lawyers from the Canadian Armed Forces and the Department of Justice who will be part of the regulatory process will be attentive to all relevant constitutional and legal considerations when defining the infractions, sanctions and procedures that will constitute the new summary hearing process contemplated in the bill.
In this respect, I was very encouraged by the commitments made by the minister, both during his testimony and in a letter that he sent to the committee following his appearance. In that letter, the minister made a commitment, that was the word he used, to:
. . . ensure that the regulations pertaining to the summary hearing process are drafted in light of the fundamental principles of creating a non-penal, non-criminal disciplinary system.
Honourable senators, having reviewed all of the testimony on this issue, I am satisfied that this part of the bill is a step in the right direction and worthy of our support.
Let me now turn to the second major change that is proposed in Bill C-77, the incorporation of the declaration of victims’ rights into the Code of Service Discipline contained in the National Defence Act.
This was the part of the bill that attracted the most attention at committee, and it was the subject of all of the amendments that were introduced during clause-by-clause consideration. I expect that this will be the main focus of the speeches that follow mine and certainly that of the opposition critic. For that reason, let me try to present to you as fairly as I can, and hence the length of this speech for which I apologize once again, the full range of views that were submitted to the committee and the conclusions that I drew from the testimony that I heard.
Let me begin with a fact that is beyond dispute and here let me quote from one of the many witnesses who made this point at committee. Colonel Stephen Strickey, a Deputy Judge Advocate General, stated:
To the greatest extent possible, the declaration of victims’ rights mirrors the Canadian Victims Bill of Rights.
Indeed. In fact, it is virtually an exact copy of the Canadian Victims Bill of Rights, which Senator Boisvenu championed, sponsored and, as he reminded us in the committee, drafted.
Witness after witness agreed that in all material respects, the two texts are almost identical. One may now not support the declaration of victims’ rights that is proposed in Bill C-77, that is one’s prerogative. One can change one’s mind. But all must agree that it is almost word-for-word not only the same as the Canadian Bill of Rights but I should add the declaration of victims’ rights that was introduced by the previous government in the dying days of the last Parliament.
Where opposition members and I certainly do disagree is in the weight we attach to the often competing testimony that we heard at committee. Where we clearly disagree, although I have to confess that it still confounds me, is on the risks that we’re prepared to take, that the bill, and the declaration of victims’ rights that is contained therein, will die on the Order Paper if the bill is amended here in the Senate. For the life of me, I simply cannot understand how taking the risk that the bill will die enhances the rights of victims. But I digress.
At committee, we heard from many witnesses. Some of them strongly supported the legislation. Others had reservations but still thought it was better than the current state of the law. Some would rather the bill die than pass in its present form. Many of the witnesses were experts in the field of victims’ rights, while others were victims and survivors themselves.
I believe that it is fair to say that although the majority of the witnesses supported the intent and objectives of the bill, all witnesses felt that the bill could be improved, and many recommended specific amendments. Within this group of witnesses were Ms. Heidi Illingworth, Federal Ombudsman for Victims of Crime; Dr. Denise Preston, Executive Director of the newly created and independent Sexual Misconduct Response Centre, or SMRC; and Major Lindsay Rodman, a former Judge Advocate in the United States Marine Corps and an expert on the U.S. and Canadian military justice systems. Nevertheless, despite their criticisms, they all agreed that it represented a major step forward and should be enacted into law.
Other witnesses were more critical of the bill and were reluctant to support it without further amendment. This came through very powerfully in the testimony of those witnesses who had been victims of acts of sexual misconduct while they were in uniform. Indeed, one witness, herself a survivor of sexual assault by her commanding officer, testified that the bill could not be saved at all. I was profoundly moved by their testimony, as were all members of the committee. It took enormous courage for them to come forward and share their experience with us.
I want to provide you with a full and accurate picture of the testimony we heard. A number of major issues raised by the witnesses were the subject of amendments proposed but defeated in committee. You will hear these and perhaps others raised in the speeches to come. I wanted to share my point of view on them because this is my opportunity to do so.
The most general and far-reaching umbrella criticism that the witnesses levelled against the bill is simply this: That it fails to provide meaningful rights protection to victims, and the argument was that it failed to do so in several ways.
Witnesses argued that the bill should be amended to ensure that victims are guaranteed their rights without having to request them, as the language of Bill C-77 actually provides. Witnesses and committee members expressed concern that, especially in the hierarchical culture that is the military, victims must be ensured that their rights, including their rights to information and assistance, are provided proactively and not only “on request.”
In response, Commodore Geneviève Bernatchez, the Judge Advocate General, stated this:
One thing that is important to remember . . . is that the declaration of victims’ rights aims to completely align with what already exists in the . . . Canadian Victims Bill of Rights. There are similar dispositions to make certain rights conditional to the desire of the victim to receive those rights.
. . . the approach here is one that is very much victim-centric, which aims to be mindful and respectful of victims’ desires. Not all victims want to be proactively approached by whichever authorities out there. . . .
Certainly what I see, from a legal perspective, is that by enshrining this declaration in legislation, it creates a positive obligation to the institution to deliver those rights to the victims. Also, it makes the institution and its actors accountable for delivering those rights when the victim wants to have them delivered to them.
And Dr. Preston added the following:
At the same time as we want to remove the burden, to the extent possible, on the victim for having to be the one to come forward and ask for that information, we also want to respect their choice and empower them, and only provide the information they consent to.
Dr. Preston continued:
We have to balance privacy and confidentiality as well. . . . Our data show that about 45 per cent of reports are made by third parties. The Auditor General noted quite clearly in their report that many victims resented the fact that third parties would come forward and report on their behalf, because they were not prepared to report and did not want to be put into a formal process. The concern would be if third parties are coming forward and reporting in 45 per cent of the cases, for example, if SMRC or the victim liaison officers approach them directly and said, ”I heard you were a victim, can I provide you with information,” it has the potential to further burden, frustrate or further violate the privacy of victims.
Honourable senators, this is a real policy dilemma, but it is not insoluble. Witness testimony revealed several ways in which victims will have access to the information and support they need to protect and vindicate their rights. For example, Dr. Preston testified that the SMRC is:
. . . initiating a service enhancement where we will provide case managers or response and support coordinators for all victims — upon consent, of course, or with consent — from the time of first disclosure until such time as they don’t need support anymore.
But even more significantly, in his letter to which I referred earlier, the minister commits to:
Ensure that the SMRC, Military Police, and Military Prosecution Service proactively make victims aware of their rights under this legislation, including the right to request information and to ask any commanding officer for a VLO (victim liaison officer) of their choice.
Enable VLOs to work in conjunction with the SMRC Response and Support Coordinators in cases of sexual misconduct to ensure that victims are aware of the resources available to them and their rights under the Declaration of Victims’ Rights.
Considerable attention was also paid to the role of the victim liaison officer in the bill. Some witnesses stated that they feared their commander would impose an officer, or that the officer would be from the same unit where the alleged perpetrator of the offence would serve their sentence. Will victim liaison officers receive appropriate training? Should they be lawyers? This is what we learned in committee.
Those responsible clearly established that all liaison officers would receive appropriate training enabling them to fulfill their role within the military justice system, which is confirmed in the minister’s letter to the committee. The minister also confirmed that the victim would be able to choose their liaison officer. In his testimony, the minister also confirmed that if the officer hadn’t yet received the appropriate training, the situation would be remedied quickly.
With respect to the relationship of the liaison officer with the chain of command, witnesses pointed out that it is misleading and even false to presume that the relationship between the chain of command and the individuals under its authority is incompatible. When he appeared before the committee, Lieutenant-General Charles Lamarre spoke with passion when he stated that the main role of the chain of command is to look after all its members.
More importantly, Bill C-77 clearly indicates that the appointment of a liaison officer is not the prerogative of the commanding officer of the victim or the accused. As Commodore Bernatchez explained:
The bill is quite clear that it’s a commanding officer. It’s not the accused’s commanding officer or the victim’s commanding officer. It gives the flexibility to a commanding officer to appoint a victim liaison officer. That’s done in order to truly respect the nature of the control that a commanding officer would have of the member designated to ensure that member is held accountable, made free to accomplish their function and is properly trained to accomplish their function. The victim liaison officer does not necessarily come from the victim’s unit, the offender’s unit or the accused’s unit. It’s a commanding officer.
As far as the issue of liaison officers and their status as counsel is concerned, witnesses underscored the importance of benefiting from support for themselves and their families that might go beyond the provision of legal advice. Nevertheless, legal advice is very important when navigating the entire justice system, military or civilian. To that point, Dr. Preston evoked a pilot project that is under way, that seeks to provide free and independent legal advice to victims in the military justice system, advice that represents a complement to the support a liaison officer might also provide.
Some witnesses also criticized the bill for not giving victims the right to apply to the courts for compensation if they feel their rights have been violated. However, the Canadian Victims Bill of Rights contains identical provisions denying this recourse. Furthermore, Bill C-77 would give victims access to an internal complaint procedure if they feel that their rights have been violated.
You will also hear that the victims weren’t consulted before the bill was drafted. This is true and was acknowledged by the public officials who testified in committee. However, they emphasized that the bill’s purpose was to incorporate the provisions of the 2015 Canadian Victims Bill of Rights and that in-depth consultations were held with victims before the bill was introduced in Parliament. Nevertheless, it’s clear that victims dealing with the military justice system have a different experience from victims dealing with the civilian justice system and that victims must be involved in developing the regulations. Witnesses were clear about this, and the minister committed to ensuring that “victims and primary stakeholders, such as the Sexual Misconduct Response Centre, or SMRC, are consulted during policy analysis for the regulations, to ensure that all points of view are taken into account.”
Honourable senators, many other issues came up in committee that you may hear more about during the debate, but my time is almost up. All I will say is that in light of the testimony we heard and the commitments that the minister made, I am convinced that Bill C-77 is a good bill that deserves our support. However, I do have one final issue to raise, one that goes to the heart of our responsibilities as senators and the hard choice we face at this stage in the life of this Parliament.
Some will tell you that the Senate is not fulfilling its duty if it declines to amend Bill C-77. The opposition critic explained that well during clause-by-clause consideration, when he scolded me for not supporting an amendment to the bill. He said, and I quote:
If your position from the start is that there’s no point in amending this bill, what are you doing as senators? Our job is to improve a bill so it addresses the needs of the most vulnerable people in our society: victims of crime. If we decide we’re not going to improve this bill, then what are we doing here?
This is not a trivial question. On the contrary, it goes to the very question of the role of the Senate in our system of parliamentary democracy. So allow me to offer the following answer to that question.
Honourable senators, amending a bill is not the only way the Senate can fulfil its responsibility as a complementary legislative body in the Parliament of Canada. Indeed, it is not always the appropriate way. As has often been affirmed in this chamber, senators have many tools at our disposal, including using our processes and our position as senators to put issues on the public agenda.
Moreover, we can and often do append recommendations and observations to our committee reports, as we did in the case of Bill C-77. Furthermore, we can — and, indeed, we should — make far better use of our committees to follow up on those recommendations and to monitor the implementation of legislation after it has passed.
But in the bill that is before us, the Senate has already added real value to the legislative process and to the benefit of all the participants in the military justice system. First, we received clear commitments from the minister on several key issues that were of great concern to all members of the committee. These provided welcome clarity on how the next steps in the process of reforming the military justice system will unfold.
Second, the committee unanimously approved a series of focused observations and recommendations that we appended to our report. These provide direction to those responsible for drafting the regulations under the act, send a strong signal to the military authorities responsible for implementing reform, and set out the principles to guide us in holding the government and the military to account as they move forward. These are real and tangible achievements, ones for which our committee should be proud.
So what about amendments? Doesn’t an amendment carry more weight than an observation or even a written commitment from a minister? Of course it does. But, honourable senators, if I can channel my children, let’s be real.
The inescapable truth is that in this first week of June, with only a few sitting weeks left before Parliament rises and only months away from a federal election, we are faced with a difficult but unavoidable decision. Do we pass the bill as is? Or do we amend it with the almost certain result that it will wither and die on the Order Paper? We can regret this choice, as I certainly do. We can blame the government, as I know others will do. But one thing we can’t do, we cannot wish this away.
So what did our witnesses say on this issue? All of them had criticisms and reservations about this bill. Most of them brought forward suggested amendments to address the shortcomings of the bill as they saw them. Let me quote from their testimony.
From Ms. Heidi Illingworth, Federal Ombudsman for Victims of Crime:
I would take the opportunity to encourage you to pass this legislation. Absolutely, it’s really important. It’s critical that we bring the rights in the military justice system up to par with the civilian justice system.
From former Marine Corps Judge Advocate Lindsay Rodman. The bill:
. . . is a step in the right direction. . . .
. . . I would hate to sacrifice good progress in the short run just in the hopes that it would not spur even better progress in the long run.
And from Major Carly Arkell, testifying as an individual and as a survivor, and for whom this choice was excruciatingly difficult, these remarks:
I’ve been torn about this. . . .
As Major Rodman put it, if this is a starting point — that it’s just the beginning and that we have to do more in how we write the policies and regulations to incorporate this bill, but also there are other aspects — that this is simply one piece of the pie and not the total solution — then yes.
However, I give [the bill] a very low grade. It barely passes. I’m not even sure it really meets the standard, to use a military term, but there is a lot of progress that was made in this. Something is better than nothing, but we can’t rest on our laurels. We can’t stop here.
And finally, from Dr. Denise Preston:
I think that this is an important bill because it makes the military justice system in parallel with the Canadian criminal justice system. So it would remove the perception that there’s a two-tiered system and that victims in the military justice system are somehow lesser or entitled to less. I think that that’s an important equalization for victims.
The other thing that I think is important, obviously, is enshrining these rights into law. It’s one thing for us to be doing it by policy or by practice, but to enshrine it into law raises it to another level.
Honourable senators, our choice as senators is not between a good but imperfect bill and a better one. Our choice is between this bill and no bill. To choose the former is to advance the cause of military justice reform and to support the efforts to provide greater support to victims within the military. To choose the latter is to maintain the status quo, where victims within the military justice system are denied the very same rights as all others in our justice system. This cannot be the proper role for us as unelected members of the Senate of Canada.
Let me conclude with this: During the committee hearings, we heard from many members of the Canadian Armed Forces who were also present with us during clause-by-clause consideration. They offered technical explanations and clarified points that were raised, but consistent with their roles as officials, they did not offer their views on the policy choices of the bill or on the question of whether the bill should be amended. As we would expect, they stayed within the proper limits of their professional roles.
However, at the end of clause-by-clause consideration, after the bill was passed by the committee without amendments, one of the officials, a woman with a long and distinguished career in the military, stopped me on my way out of the committee room. This is what she said to me, and I’m quoting from memory, admittedly. “Thank you,” she said. “You have no idea how very important this is to us.”
At that moment, she was not speaking to me as an official. She was speaking to me as a female member of the Canadian Armed Forces.
I have to tell you, at that moment, I’ve never felt more proud to be a senator and to have helped move a bill through the committee stage and, I sincerely hope, on its way to being enacted into law.
We in the Senate are not compromising our principles in so doing nor are we abandoning the proper role of the Senate. On the contrary, we are doing our constitutional duty as senators to ensure legislation that advances the rights of all participants in our military justice system can be enacted into law in this Parliament.
Honourable senators, by passing Bill C-77, we are curing the unfairness in the summary trial process whereby persons can be charged with criminal offences without a right to a lawyer, a right of appeal or even a transcript of the proceedings. By passing this bill, we will be giving the military the tools it needs to deal quickly and effectively with disciplinary issues so that morale and discipline can be maintained within the forces.
Most importantly, by passing Bill C-77, we are bringing to an end the unacceptable double standard whereby victims of military offences are denied the same rights as victims in the civil justice system. To act otherwise, to put Bill C-77 at risk of dying on the Order Paper, would be to betray the interests of all the people who serve with honour in the Canadian Armed Forces. That’s not what we were summoned to the Senate to do. Thank you very much.