Modernization of the Military Justice System

This morning, I had the pleasure of appearing in front of the House of Commons’ National Defence Committee alongside Dr. Megan Mackenzie, LCol (ret’d) Rory Fowler, and Colonel-Maître Michel Drapeau.

Here were my opening comments, and many more thoughts will crystallize in the coming months.

Mr. Chair, vice-chairs, and members of the Committee,

It is an honour being in front of you today.

I will be doing my remarks in English, but it will be my utmost pleasure to answer your questions in French.

My remarks today will focus on whether Bill C-11 helps prevent sexual misconduct and violence, what I view as the core nature of this Bill, and how to maximize its effects.

To start, I push back against the idea that Bill C-11 is fundamentally changing the culture of the Canadian military in a way that would minimize sexual misconduct. That being said, it does not mean this Bill is not worth passing.

Despite bringing necessary and long sought after change of jurisdiction for the investigation and prosecution of Criminal Code offences of a sexual nature, this Bill will not help the military prevent sexual violence in its ranks. What it does, though, is give people with lived experience the opportunity to seek justice independent from their chain of command – in the case of an offence happening on Canadian soil, and to stop using a system they have deemed untrustworthy and has reinforced institutional betrayal.

This is where we get to the history and the intent of this Bill. Most of the amendments proposed in Bill C-11 are in response to the Third Independent Review of the National Defence Act, completed by retired Justice Morris Fish in 2021. The goal of this Review was to evaluate whether the military justice system is free and protected from undue influence, is effective in “maintaining discipline, efficiency and morale,” and remains legitimate in the eyes of service members. Changing the jurisdiction of investigation and prosecution of offences of a sexual nature responds to these requirements, and even if it is Justice Arbour who recommended this change, it is aligned with the intent of Justice Fish’s review and one of his recommendations, although making it permanent.

This makes this Bill worth passing in the first place.

I would like to turn your attention now to an under-appreciated aspect of the Bill, and that is that it is requiring more direct involvement from the Governor in Council in military justice affairs. The challenge is that the Governor in Council has not been the most prompt at appointing key decision-makers. It took four years to appoint our current Chief Military Judge; it took over a year to appoint the current DND/CAF Ombudsman. This needs to change. Those positions are fixed terms; it should be easy to have prompt appointments. But reality is different. The Bill does address the challenge for the positions of Director Defence Counsel Services, the Director of Military Prosecutions, and Provost Marshal General by imposing a 90-day period for the Governor in Council to appoint someone in these roles. In that vein, I recommend the Bill be amended to include the same provision for any Governor in Council appointments related to military justice.

Beyond that, it will be upon Parliament and this Committee to ensure these appointments are done within the timeframe mandated by law.

Thank you. I am now looking forward to your questions.